HomeMy WebLinkAbout05-21-04 (2)
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE ESTATE OF : ORPHANS' COURT DIVISION
ROBERT M. MUMMA :
:
Deceased : NO. 21-86-398
:
MOTION TO QUASH SUBPOENA
OR, IN THE AL TERNA TIVE, ~.~."" ,r
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d
FOR A PROTECTIVE ORDER .j;:-,..
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AND NOW, pursuant to Pennsylvania Rules of Civil Procedure 234.4~ and
4012, comes Stradley, Ronon, Stevens and Young, LLP ("Stradley, Ronon"), non-party
i-:'
1...-'.
in the captioned matter, by its attorneys, Ball, Murren & Connell, and files this Motion to
Quash the Subpoena or, in the alternative, for Protective Order in connection with a
subpoena for records served by counsel for Robert M. Mumma, II, for the following
reasons:
1. On May 11, 2004, the undersigned accepted service of a subpoena for
production and inspection of documents. (Exhibit "A" Attached)]
2. Stradley, Ronon is not party in this case.
I It is noted that the subpoena as served upon a non-party is defective because it does not comply with
Pa.R.C.P. 4009,2] as there is no evidence that the proposed subpoena was first subject of the written notice
requirements set forth in that Ru]e. As a result, the other party, the Estate, has not been afforded the
opportunity provided by the rule to object to the proposed subpoena The subpoena, to have been proper,
would have required filing of a certificate that Rule 4009.21 had been followed. No such certificate was
filed, The subpoena is not one pursuant to 234.1 (b )(2) because it is not tied to a deposition. Instead, the
production request is independent of a date for deposition.
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3. Stradley, Ronon years agu performed a due diligence review of what are
sometimes referred to as the Mumma family businesses and, in furtherance of that
review, provided an opinion letter to the ultimate purchaser of the businesses.
4. On or about July 1, 1999, Robert M. Mumma, II, by his then attorney,
David S. Brady, Esq., in a case captioned Robert M Mumma, II v. eRR, Inc., No 99-
Civil-l 546 (C.P. Cumberland) served a document request upon Stradley, Ronon (a party
in that action) (Attached hereto as Exhibit "B") which effectively sought access to
records nearly identical to those which Mr. Mumma and his counsel now seek in this
matter in which Stradley is not a party.
5. By way of Answer to the July 1999 document request (Attached as Exhibit
"C"), Stradley, Ronon objected to the requested documents review because of matters of
privilege, because the review would cause unreasonable annoyance, oppression, burden
and expense to Stradley, Ronon in violation of Pa.R. c.P. 4001 (b) and (e), because a
substantial number of the documents were believed to be in the possession, custody and
control of Mr. Mumma and because the request sought to impose obligations inconsistent
with or in addition to those required by the applicable Pennsylvania Rules of Civil
Procedure. Those objections apply equally to the subpoena about which this Motion is
filed.
6. That matter lay dormant until counsel for Mr. Mumma filed a Motion to
Compel Production of Documents on or about November 18, 1999. (Exhibit "D"
Attached)
7. By letter of February 9, 2000, Attorney Brady requested that Motions to
Compel Production, one involving Stradley, Ronon and the other involving Morgan,
2
'"
.
. Lewis & Bockius, be scheduled for a Discovery Conference before the Honorable J. I .
.
Wesley Oler. (Exhibit "E" Attached)
8. By Order of February 15, 2000, Judge Oler scheduled a discovery
conference on Plaintiffs Motion to Compel for April 12, 2000, (Exhibit "F" Attached)
9. At the discovery conference, counsel for Mr. Mumma attempted to
convince Judge Oler that he (Mr. Brady) should be able to look through all records at
Stradley, Ronon. Judge Oler clearly stated that would not be allowed. His Order
required Stradley, Ronon tofurnish to Mr. Mumma's counsel:
. . . minutes, stock ledger books, shareholders' agreements,
documents effecting the issuance of stock certificates,
andlor buy-sell agreements pertaining to Nine Ninety Nine,
Inc., Pennsy Supply, Inc., Pennsylvania Supply Company,
Inc., of Harrisburg, Kim Company, and Pennsy Supply
Inc., in its possession at this time, excluding any such items
which have been furnished to Plaintiff or Plaintiff s
attorney at No. 423-94 CIVIL TERM (Cumberland
County), No. 4753-S 1993 (Dauphin County) or in the case
of RSE, Inc., v. Hempt Brothers (Federal Action).
(Exhibit "Goo Attached)
10. In response to the April 12, 2000 Order of Judge Oler, Stradley, Ronon, as
a party in Robert M Mumma, 11 v. CRR, et al., No. 99-1546 (C.P. Cumberland),
produced 2390 pages of documents to Mr. Mumma and his counsel.
11. Stradley, Ronon has provided other documents requested by Plaintiff or
his counsel in other matters in which it is a non-party. As a non-party in a case captioned
Robert M Mumma, 11 v. G-A-T Distribution Corp., No 423 Civil 1994 (C.P.
Cumberland), by Order of Judge Bayley, Stradley, Ronon in the year 2000 produced to
Mr. Mumma 1605 pages of documents selected by Mr. Mumma after a review of boxes
3
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EXHIBIT A
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
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,
. , .
IN RE ESTATE OF . ORPHAN'S COURT DIVISION
.
ROBERT M. MUMMA .
.
.
.
Deceased. . NO. 21-86-398
.
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Stradley, Ronan, Stevens & Young LLP
2600 One Commerce Square
Philadelphia, PA 19103
VVithin nventy (20) days after service of this subpoena, you are ordered by the court to
produce the following documents or things for inspection and copying:
See Attachment" A"
at the Philadelphia offices of Stradley, Ronan, Stevens & Young LLP
You may deliver or mail legible copies of the documents or produce things requested by this
subpoena, together with the certificate of compliance, to the party making this request at the address
listed above. You have the right to seek in advance the reasonable cost of preparing the copies or
producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20)
days after its service, the party serving this subpoena may seek a court order compelling you to
comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Chadwick O. Bogar, Esquire
Attorney 1.0.83755
Miller Lipsitt LLC
P.O. Box 959
Camp Hill, PA 17001-0959
(717) 909-5920
Date:
Seal of the Court
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ATTACHMENT "A"
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All records relating to the due diligence examination of the group of companies going by the
name of Pennsy Supply, Nine-Ninety Nine, Inc., 999, Inc., Kodie Acquisition Corp., High-Spec, Inc.,
and Pennsylvania Supply Company and any parent, subsidiary or related corporation. These
requested records cover the period from formation to the present and include all documents dealing
with the need for review, possession and examination of share certificates, stock books, corporate
bylaws, shareholder agreements, corporate minutes and other related corporate documents, and all
documents relating to assets, earnings, reserves and acquisitions, transfer of assets, deeds, permits,
both state and federal tax returns (including any amendments and settlements), and redemption of
shares.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND CPUNTY, PENNSYLVANIA . .
I
IN RE ESTATE OF : ORPHAN'S COURT DIVISION
ROBERT M. MUMMA .
.
:
Deceased. : NO. 21-86-398
NOTICE
To: Stradley, Ronan, Stevens & Young LLP
c/o Richard E. Connell, Esquire
Ball, Murren & Connell
2303 Market Street
Camp Hill, P A 17011
The enclosed subpoena is served pursuant to Pennsylvania Rule of Civil Procedure
234.2(b)(3). Complete the acknowledgement part of this form and return the copy of the
completed form to the sender in the enclosed self-addressed stamped envelope.
Sign and date the acknowledgement. If you are served on behalf of a partnership,
unincorporated association, corporation or similar entity, indicate under your signature your
relationship to that entity. If you are served on behalf of another person and you are authorized
to receive the subpoena, indicate under your signature your authority.
Date Notice Mailed: May 10, 2004
Cc..o~;).)'c.l O,~
Chadwick O. Bogar, Esquire
MILLER LIPSITT LLC
P.O. Box 959
Camp Hill, PA 17001-0959
(717) 909-5920
ACKNOWLEDGMENT OF RECEIPT OF SUBPOENA
I acknowledge receipt of a coy of the subpoena in the above-captioned matter.
Date: s-III/{)J./ By: _C FCYt
<f ;(/C H/fR,i) f:~ L()fI,)tJlZL.L
Print Name
/!TTOICNIL-Y loR :im/JLkE If
Relationship to entity or authority to
receive the subpoena
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EXHIBIT B
L
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. : IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
:
:
ROBERT M. MUMMA, II .
.
Plaintiff :
:
v. : Civil Action - Law
: No. 1546-8- Civil Term of t 999
CRH, INC., PENNSY SUPPLY, INC :
LISA MORGAN, BARBARA McKIMMIE :
MUMMA, LINDA MUMMA ROTH, :
(. MORGAN LEWIS AND BOCKIUS, :
STRADLEY, RONAN, STEVENS AND :
YOUNG :
Defendants :
REQUEST FOR DOCUMENTS
TO A PARTY PURSUANT TO PA. R.CIV.P. 4009.11
TO: STRADLEY, RONAN, STEVENS & YOUNG
CARE OF: LEE A. ROSENGARD
C, 2600 ONE COMMERCE SQUARE
PHILADELPHIA, PA 19103
NOTICE: Your firm is requested to produce all documents listed herein and records
related thereto and to make all of them available to Plaintiff and his attorneys for
inspection and copying pursuant to Pa. R.Civ.P. 4009.11:
EXHIBIT "A"
These instructions and the accompanying list of documents are incorporated
by reference in those certain Subpoenas being issued in the captioned matter
through the Cumberland County Court of Common Pleas for production of
documents referred to in this Exhibit A for inspection by Plaintiff and his
attorneys on August 3, 1999 from and after 10 a.m. at your offices in
Philadelphia.
I. DEFINITIONS AND INSTRUCTIONS
A. Definitions
,
1. The word "document~' or "documents" refers to any printed, writtcn,
taped, recorded, graphic, computerized printout, or other tangible matter, from whatever source,
however produced or reproduced, whether sent or received, or neither, including but not limited
to, the original, a copy (if the original is not available), and all nonidentical copies (whether
different from the original because of notes made on or attached to such copy otherwise) of any
and aU writings, files, records, account statements, bills, invoices, receipts, correspondence,
letters, telegrams, cables, telexes, routing slips, contracts, proposals, agreements, minutcs,
acknowledgments, notes, marginalia, notation, memoranda, intra and interoffice communication,
intra and interdepartmental communication, electronic mail, analyses, projections, work papers,
books, papers, records, reports, diaries, journals, notes or recordings of telephone or other
conversations, statements, questionnaires, schedules, computer programs or data, books of
account, calendars, graphs, chart, transcripts, tapes or recordings, photographs, pictures or film,
( '. ledgers, registers, work sheets, summaries, digests, financial statements, and all other information
whether data, records or compilations, including all underlying, supporting or preparatory
material now in you possession, custody or control or available to you, your employees, agents,
representatives or associates. "Document" or "documents" specifically includes documents kept
by individuals in their desks, at home or elsewhere.
2. "Copy" when used in reference to a document means any color, or black
or white facsimile reproduction of a document, regardless of whether the facsimile reproduction
is made by means of carbon papers, pressure sensitive paper, xerography or other means or
process.
3. "Communication" means any correspondence, writing, oral conversation;
or electronic transmission including but not limited to telephone conversations, meetings, letters,
telegraphic and telex communications, electronic communication and includes all information
( relating to all oral communications and "documents" (as defined herein, above), whether or not
any such document, or other information contained therein was transmitted by its author to any
other person.
4. "Person" means any natural person, any business entity (whether a
corporation, partnership, or other business association), and government or political subdivision
thereof, or governmental body, commission, board, agency, bureau, or department.
5. "RMMII, et. al." means Plaintiff Robert M.
Mumma, II.
6. The word "Stradley" means the firm of Stradley, Ronan, Stevens &
Young, and said firm's predecessors, if applicable, and David R. Landry,
Lee A. Rosengard and the present and former officers, directors, trustees,
agents or employees of either the firm or the individual attorneys' named;
its assignors, merged, consolidated or acquired predecessors or successors;
and its divisions, units and subsidiaries, whether or not wholly owned.
"
. .
. 7. "Pennsy" means Penn~y Supply, Inc., now a subsi~iary of Oldcaslle, Inc.,
and includes its present or former attorneys and law firms; its present and
former stockholders, members, attorneys, partners, officers, directors,
trustees, agents or employees; its assignors, merged, consolidaled or
acquired predecessors or successors; and its divisions, units and
subsidiaries, whether or not wholly owned.
8. Where applicable "Stradley client" shall mean the following persons served
by Stradley, Ronan, Stevens & Young, and said firm's predecessors, if
applicable, and David R. Landry, Lee A. Rosengard individually and the
present and former officers, directors, trustees, agents or employees of
either the firm or the individual attorneys' named or other member of said
( firm or employee of said firm or person, including the following persons,
companies or Estates anyone or more of which may have been clients of
your firm:
[Note: When a company name appears in this list of clients, it shall
include its officers, directors, shareholders and employees as possible
persons who may have consulted with your firm concerning
discoverable matters.]
a. Robert M. Mumma, II;
b. Robert M. Mumma, I;
c. Morgan, Lewis & Bockius or individual with the firm
d. Gibson, Dunn & Crutcher or individual with the firm
e. The Estate of Robert M. Mumma, I
/' f. The Estate of Walter Mumma
~/ Jerry T. Simpson or Joseph Simpson
g.
h. "Mumma Family related businesses"
1. Barbara McKimmie Mumma; individually or as Co-Executrix of the
Estate of Robert M. Mumma, I;
J. Lisa Mumma, individually or as Co-Executrix of the Estate of
Robert M. Mumma, I;
k. Linda Roth Mumma
1. CRH, pIc
m. Kodie Acquisition Company
n. G.A.T., Distribution Corp.
o. Pennsylvania Supply Company Inc
p. Kim Company
q. Nine-Ninety-Nine Inc
r. Ten-O-One Inc
s. Mumma Realty Associates [MRA 1 and MRA2]
1. Dauphin Deposit Bank & Trust
u. Gemini Equipment Business Trust;
v. Kimbob, Inc.;
.
w. McDermitt, Inc.;
x. Robert M. Mumma, II Grantor Retained Annuity Trust;
y. Pennsy Supply, Inc flk/a Pennsy Supply Inc (no comma), Fiala
Crushed Stone Company, Pennsylvania C (including Hummelstown
Quarry, Inc. and Elco Concrete Products).
z. The Estate of Walter Mumma and its Executors Robert M.
Mumma, I and Dauphin Deposit Bank;
9. "Y " " " "St dl" D'd R L dE' L
ou, your or ra ey means aVl . an rey, sqUIre, ee A.
Rosengard or any member of the firm who assumed or performed any role
he, she or they may have or may have had as attorney for the listed Stradley
clients or any of them enumerated above.
10. "Relating to," relate to," or "with regard to" shall mean mentioning,
discussing or commenting upon the specified subject.
11. "Identify" when used in reference to:
a. An individual, shall mean to state his or her full name and present
or last known address (including zip code), phone number, and present or last
known position or business aCliliation (designating which), and the joh description.
b. A firm, partnership, corporation, proprietorship, or association, shall
mean to state its full name, it present or last known address (designating which), its
state of organization or incorporation, the address of its principal place 0 f business,
the address( es) of any office(s) relevant to this lawsuit, and to state the name and
address of each person within the entity likely to have knowledge of the
relationship between you and that entity.
c. A document shall mean to state the date, author, sender, rccipicnt,
type of document or some other means of identifying it, a description of the suhjcct
matter of the document, and its present location and custodian. In the case of a
document within your possession, custody or control, please state whethcr YOll will
make it available to RMMII, et. al.'5 attorney for inspection andlor copying; and in
the case of a document that was, but is no longer in you possession, custody or
control, please state what disposition was made of it.
12. Use of the plural form of any word shall be deemed to include the singular
form and use of the singular form shall be deemed to include the plural form.
13. The words "and" and "or" mean "and/or."
B. Instructions
.
1. In producing documents you are requested to furnish all documents or
things in your possession, custody or control, or known or available to you, regardless of whether
such documents or things are possessed directly by you or by your agents, employees,
representatives of investigators.
2. Unless otherwise indicated in a specific document request, the relevant
time period for these document requests is 1986 through the present.
3. If any requested document is not or cannot be produced in full, produce it
to tbe extent possible, indicating what document or portion of any such documents is not or
cannot be produced and the reason therefor.
4. In producing documents, you are requested to produce the original of each
document request together with all non-identical copies and drafts of that document.
5. All documents should be produced in the same order as they are kept or
maintained by you.
6. All documents should be produced in the file, folder, envelope or other
container in which the documents are kept or maintained by you. If for any reason the container
cannot be produced, please produce copies of all labels or other identifying markings.
7. Documents attached to each other should not be separated.
8. Documents not otherwise responsive to this request shall be produced if
CJ) such documents refer to, relate to, or explain the documents called for by this request or if such
documents are attached to documents called for by this request and constitute routing slips,
transmittal memoranda or letters, comments, evaluations, or similar documents.
9. To the extent that you consider any of the following document requests
objectionable, respond to so much of each document request and part thereof, as is not
objectionable in your view and separately state that part of each document request as to which you
raise objections and each ground for such objection.
10. If you object to the production of any document on the claim of attorneyl
client privilege, work product privilege, or any other privilege, identify the privilege claimed as
well as each document for which such privilege is claimed, together with the information
necessary to support your claim of privilege, including the following information with respect to
each document:
a. Date;
b. Sender;
c. Addressee;
d. Subject;
.
.
e. The basis on which th~ privilege is claimed; and
f. The names of persons to whom copies of any part of the document
was furnished, together with an identification of their employer and their job titles.
11. To the extent any of the documents requested by the following document
requests were at one time in your possession, custody or control, but are no longer within your
possession, custody or control, why it is no longer within your possession, custody or control and
identify any individual, firm, partnership, or corporation that may be in possession, custody or
control of the document.
II. DOCUMENT REQUESTS
1. All communications, correspondence or other documents relating to your
firm's role as attorney for Robert M. Mumma, II and or any of the
enumerated Stradley clients with emphasis upon the persons, companies,
law firms and entities who negotiated a sale ofPennsy Supply, Inc and so-
called "Mumma Family businesses" to CRH, pIc, Oldcastle, Inc, Kodie
Acquisition Company, G.A.T.;
(/
2. Billing and time records of David R. Landrey and Lee A. Rosengard or
other firm member who worked on any matter relating to anyone or more
of persons or entities on the "client" list.
.
3. All documents within your possession, custody or control, including but
not limited to any notes, memoranda, diaries or other documents, relating in any way to and 0 f the
Stradley clients and corporate entities enumerated under "Stradley Clients" and related entities
including but not limited to All:
Due Diligence Reports Preparatory to or following Sale of Pennsy Supply,
Inc
Due Diligence Reports Preparatory to or following Sale of Nine-Ninety
\ Nine, Inc.
Stock books, Share Records,
Stock Ledger Books
Minutes of Directors' Meetings for any entity named in client list
(,
Memoranda and Correspondence from Officers, Directors, Shareholders
Memoranda and Correspondence [rom and to attorneys representing the
same or other clients related to the named parties to the above captioned
proceeding;
Shareholders Agreements
.
. Buy-Sell Agreements
Stock split Agreements
Marital Trusts
(
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Corporate By-laws and amendments thereto
Any revocation Agreements which revoke, revise or speak to any of the
above.
Plans of Mergers
4. All communication, correspondence or other documents relating to the
corporate meetings of Pennsy Supply, Inc its predecessors and/or successors including but not
limited to minutes, stock issuance, preparation of documents filed or intended to be filed with the
Pennsylvania Department of State for any of the enumerated clients and the following entities:
The Estate of Robert M. Mumma, I and its Executrices Lisa Mumma Morgan and Barbara
McKimmie Mumma;
Entity #1 Name Date of Incoro. Corp. Box No.
.
#272024 Pennsy Supply, Inc. 3/20/58
#120660 Fiala Crushed Stone
Corporation 1115/58
#120660 Pennsy Supply Inc.
(
I.
(Note: no comma) 5/3/61 (merger)
#120660 Nine Ninety-nine, Inc. 1/4/82 (name change)
( #740666 Ten-O-One, Inc. 10/9/81
#189260 Kim Company 8/25/47
#272639 Pennsylvania Concrete Company 1922
#2533696 D-E Distribution
Company 7/21/93
.
.
. #(unknown) Pennsylvania
Supply Company (unknown)
5. All communication, correspondence or other documents relating to the
preparation of corporate name changes, mergers, Plans of Division, stock
issuance, cancellation of stock, minutes of corporate meetings, by-laws, by-
law changes or amendments, tax returns of any of said entities for any year
( during which the Stradley firm its predecessors or successors served such
clients; assets, stock, shares and company estate transfcrs to or from the
above entities, including but not limited to the CRH, pIc, Pennsy Supply,
Inc, Nine Ninety-Nine, Kodie Acquisition Corporation.
6. All communication, correspondencc or other filcs, rccords and documents
relating to the Estates of Walter Mumma, and Robert M. MUlllma, I.
C"
7. All communication, correspondence, notes of conversations held with
Barbara McKimmie ("Kim") Mumma, Lisa Morgan, their agcnts or
attorneys relating to the clients listed;
8. All documents within your possession, custody or control, including but
not limited to any notes, memoranda, diaries or other documents, relating in any way to:
a. the negotiation of the Sale or transfer ofPennsy Supply, Inc, Nine-
.
Ninety Nine, T en-O-bne andlor any of their predecessors or
successors in which your firm or any member of it participated;
b. Records leading up to and Follow-up communications after the files
and records of entities were turned over or delivered by your firm to
any other person not a member of your firm;
(
9. All communications or other documents relating to any instructions you
received from RMMI, et. al. and/or any other person relating to the following:
a. Corporate structure of any of the entities enumeratcd as "Slradley
Clients", including discussion of stock, shares and illlcrests of
shareholders, disposition of share interests of any person or entity,
plans of division, the negotiation of the Sale of Pennsy Supply, Inc;
(,-
b. the preparation for the closing of any stock sales, divisions,
corporate reorganizations of any of the listed "Stradley Cl ients";
10. Please Identify all persons served as clients during the period from and
after January of 1986 to the present, who are related in any way to
"Mumma related family businesses" listed "Stradley Clients" and in the
Instructions under individual questions and the list above at Item Number
Eight of the Definitions and Instructions.
Davia S. Brady, ttorne
Attorney for Plaintiff Robert
Pa. Atty ID #35928
4 Central Blvd
Camp Hill, PA 17011
Phone: (717)303-2080
Fax: (717) 303-2082 July 1, 1999
(
("
EXHIBIT C
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
ROBERT M. MUMMA, II
v. No. 99-1546
CRH, INe., PENNSY SUPPLY, INe.
LISA MORGAN, BARBARA MCKIMMIE
MUMMA, LINDA MUMMA ROTH,
MORGAN, LEWIS & BOCKIUS,
STRADLEY, RONON, STEVENS & YOUNG
(
ANSWER OF DEFENDANT STRADLEY, RONON, STEVENS & YOUNG, LLP,
TO PLAINTIFF'S REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to Pennsylvania Rule of Civil Procedure 4009.12, defendant Stradley,
Ronon, Stevens & Young, LLP ("SRS&Y") responds to plaintiffs Request for Production of
Documents ("Plaintiffs Document Request") as follows:
1. SRS&Y objects to Plaintiffs Document Request in its entirety, on the
(" ground that until such time as plaintiff files a Complaint in this matter, it is impossible to
determine whether any of the documents requested are relevant to the subject matter involved in
the pending action, as required by Pa. R. Civ. P. 4003.1(a). Once plaintiff files his Complaint,
SRS& Y will consider whether it has a continuing objection under that Rule.
2. SRS&Y objects to Plaintiffs Document Request in its entirety, on the
ground that from approximately 1988 through 1994, SRS& Y represented, among others, Nine
Ninety-Nine, Inc. and certain of its subsidiaries, Hummelstown Quarries, Inc., Barbara
McKimmie Mumma, Lisa Mumma Morgan, Linda Mumma Roth and other individuals and
related entities in connection with the so-called Mumma family related businesses, that SRS& Y
,
lias approximately 35 archive boxes of documents ,relating to those representations, and that a
substantial number of the materials in those boxes are protected by the attorney-client privilege
and the work product doctrine.
3. SRS&Y objects to Plaintiff's Document Request in its entirety, on the
ground that, for the reasons set forth in paragraphs 1 and 2 above, a review of the documents,
under the circumstances as they now exist, would cause umeasonable annoyance, oppression,
burden and expense to SRS&Y, in violation ofPa. R. Civ. P. 4011(b) and (e).
( 4. SRS&Y objects to Plaintiff's Document Request in its entirety, on the
ground that a substantial number of the documents requested are already believed to be in the
possession, custody, and control of plaintiff.
5. SRS& Y objects to each and every definition and instruction contained in
Plaintiffs Document Request and to Plaintiffs Document Request in its entirety, to the extent
that the definition, instruction or document request seeks to impose obligations inconsistent with
or in addition to those required by the applicable Pennsylvania Rules of Civil Procedure.
(, ~
,
Lee A. osengard
STRADLEY RONON STEVENS & YOUNG, LLP
2600 One Commerce Square
Philadelphia, PA 19103
(215) 564-8000
Attorneys for Defendant
Stradley, Ronon, Stevens & Young, LLP
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. CERTIFICATE ,OF SERVICE
I, Lee A. Rosengard, hereby certify that on July 26, 1999, I caused a copy of the
foregoing Answer of Defendant Stradley, Ronon, Stevens & Young, LLP to Plaintiffs Request
for Production of Documents to be served on all counsel by first class mail, postage prepaid,
addressed to:
David S. Brady, Esquire
4 Central Boulevard
Camp Hill, PA 17011
( Robert M. Mumma, III
BoxE
Bowmansdale, P A 17008
Thomas M. Kittredge, Esquire
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, P A 19103
(/
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EXHIBIT D
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:IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
:
:
ROBERT M. MUMMA, II :
Plaintiff :
.
.
v. : Civil Action - Law
: No. 99-1546
CRH, INC., PENNSY SUPPLY, INC :
LISA MORGAN, BARBARA McKIMMIE :
MUMMA, LINDA MUMMA ROTH, :
MORGAN LEWIS AND BOCKIUS, .
.
STRADLEY, RONAN, STEVENS AND .
.
YOUNG .
.
Defendants :
PLAINTIFF'S MOTION TO COMPEL PRODUCTION
OF DOCUMENTS BY STRADLEY. RONON. STEVENS & YOUNG. LLP
NOW COMES Plaintiff. Robert M. Mumma, II by and through his counsel David S.
(-- Brady, Esquire and Cynthia E. Reed, Esquire, and brings this Motion to Compel Production of
Documents by Stradley, Ronon, Stevens & Young. In support of his motion, Plaintiff states the
following:
1. In March, 1999 Plaintiff commenced the above-captioned action by the filing of a writ of
summons.
2. On or around July I, 1999 Plaintiff served his Request for Production of Documents on
Defendant Stradley, Ronon, Stevens & Young ("SRS&Y") pursuant to Pa. R. Civ. P. 4009.11.
Attached and marked Exhibit I.
3. Plaintiff's intention with regard to the serving of the document requests was to obtain
documents and information which would have substantially aided him in the preparation of his
.
.
corp.plaint. Such a purpose is permissible under the provisions of Pa. R. Civ. P. 4001 (c).
4. Pursuant to Local Rule 206-2( c) counsel for Plaintiff has sought the concurrence of counsel
for Defendant. Counsel for Defendant does not concur with this Motion to Compel Production.
5. Defendant SRS&Y served Plaintiff with its answer to Plaintiff's request for production on
or around July 26, 1999. Attached and marked Exhibit 2. The answer objected to the document
request on the ground that, until Plaintiff filed a complaint, SRS& Y could not determine the
relevance of the requested documents to the subject matter.
6. Plaintiff has since filed a complaint. Attached and marked Exhibit 3.
7. The answer of Defendant SRS& Y further objected to the document request on the grounds
of attorney-client privilege and the work product doctrine.
8. The answer of Defendant SRS&Y violates Pa. R. Civ. P. 4009. 12(b)(2), in that it fails to
identify with reasonable particularity the documents not produced.
9. The answer of Defendant SRS& Y further objected to the document request on the ground
that a review of the documents would be burdensome.
(: 10. Defendant's answer violates Pa. R. Civ. P. 4009. 12(a)(2)(i) in that the burden of identifying
the requested documents would be substantially the same for Plaintiff as for Defendant, and
Defendant's answer fails to afford Plaintiff reasonable opportunity to identify, examine or inspect
the documents and to obtain copies.
11. Defendant's answer further objects to Plaintiff's document request on the ground that
SRS&Y believes that many of the requested documents are already in Plaintiff's possession.
12. Without Defendant's cooperation in responding to the document request, Plaintiff is unable
to reasonably determine which, if any, of the documents already in his possession may be identical
to those which Defendant SRS& Y now holds. Furthermore, Plaintiff cannot reasonably prepare his
case without being provided with the opportunity to examine and to obtain copies of discoverable
.
d~9uments in SRS& Y's possession which are not yet in Plaintiffs possession.
13. Defendant's answer further objects to Plaintiffs document request to the extent that it seeks
to impose obligations inconsistent with or in addition to those required by the Pennsylvania Rules
of Civil Procedure.
14. Plaintiffs document request does not seek to impose obligations inconsistent with or in
addition to those required by the Pennsylvania rules. To the extent that Plaintiff's document request
may have done so, Plaintiff requests that Defendant be required to comply to the extent required by
Pa. R. Civ. P. 4009.I2(a)(2)(i) and/or Pa. R. Civ. P. 4009.I2(b)(2) and by any other applicable
Pennsylvania rule governing discovery.
15. Defendant SRS&Y's refusal to cooperate with Plaintiff's discovery request in this case is
part of a larger pattern of obstruction established by SRS& Y in the face of all discovery requests
made by Plaintiff in prior litigation, as illustrated by Defendant's Motion to Quash, filed in the case
captioned Robert M Mumma, IIv. G-A-T Distribution Corp., No. 423 1994, Cumberland County
Court of Common Pleas. Attached and marked Exhibit 4.
( 16. Defendant SRS& Y's pattern of obstruction is further demonstrated by its conduct during the
"~..,'
deposition of David R. Landrey, Esquire, taken in the case captioned Robert M Mumma, II v.
Dauphin Deposit Bank and Trust Company, No. 4753 S 1993, Dauphin County Court of Common
Pleas. Attached and marked Exhibit 5.
17. Defendant SRS& Y is continuing its pattern and practice of obstruction by its objections to
Plaintiffs Request for Production of Documents brought in the instant action pursuant to Pa. R.
Civ. P. 4009.11.
18. The references herein to the SRS& Y' s obstruction to production of documents and evidence
in previous litigation with Plaintiff, is critically relevant to the subject matter of the above
captioned matter for the reason that SRS& Y held documents in its records which evidenced a
. .
wr~tten right of first refusal for Plaintiff to purchase the stock of Pennsy Supply Inc.
WHEREFORE, for the reasons stated above, Plaintiff respectfully requests that this
Court grant his Motion to Compel Production of Documents by Stradley, Ronon, Stevens & Young,
LLP, and further, that Defendant SRS&Y be required to specify with reasonable particularity any
documents not produced and the basis for non-production.
Respectfully submitted,
- ""'\
l, /~llt
David S. Brady, Esquire
Cynthia E. Reed, Esquire
Supreme Court I.D. Nos. 35928 &
81641
4 Central Boulevard
Camp Hill, PA 17011
(717) 303-2080
Attorneys for Robert M Mumma, 11
Date: it l;g /91
(.
. .
.
:IN THE COURT OF COMMON PLEAS
:CUMBERLAND COUNTY, PENNSYLVANIA
:
:
ROBERT M. MUMMA, II :
Plaintiff :
:
v. : Civil Action - Law
: No. 99-1546
CRH, INC., PENNSY SUPPLY, INC :
LISA MORGAN, BARBARA McKIMMIE :
MUMMA, LINDA MUMMA ROTH, :
MORGAN LEWIS AND BOCKIUS, .
- .
STRADLEY, RONAN, STEVENS AND :
YOUNG :
Defendants .
.
CERTIFICATE OF SERVICE
I, Cynthia E. Reed, Esquire, certify that I served a true and correct copy of the foregoing by First
Class mail, postage pre-paid, on the following addressed as follows:
Michael A. Finio, Esquire
( Stephen M Donweber, Esquire
... ~'- SAUL, EWING, REMICK & SAUL LLP
2 North Second Street, 7th Floor
Penn National Tower
Harrisburg, P A 17101
Keith O. Brenneman, Esquire
SNELBAKER, BRENNEMAN, & SPARE
44 West Main Street
Mechanicsburg, P A 17055
Nancy Pelosi, Esquire (Courtesy Copy)
Damaso Saavedra, Esquire
312 S. E. 17th Street, 2nd Floor
Ft. Lauderdale, FL 33316
. ,
I VO, Otto, III, Esquire
MARTS ON, DEARDORFF, WILLIAMS & OTTO
10 E. High Street
Carlisle, P A 17013
Richard E. Connell
BALL, MURREN & CONNELL
P.O. Box 1108
Harrisburg, PAl 71 08-11 08
(
Dated:#7
(/'
,
EXHIBIT E
( !
,
, ,
DAVID S. BRADY, ATTORNEY ,
- 4 Central Blvd. .
. Camp Hill, Pa. 17011-4207
(717) 303-2080
Fax: (717) 303-2082
February 9,2000
Judge 1. Wesley Oler, Jr
Court of Common Pleas
One Courthouse Square
Carlisle, PA 17013
RE: NOVEMBER 18, 1999 MOTION TO COMPEL PRODUCTION OF DOCUMENTS
FROM MORGAN, LEWIS & BOCKIUS AND STRADLEY, RONON, STEVENS &
YOUNG---LA W FIRMS
MUMMA VS. CRH ET AL
CASE NO. 99-1546
REQUEST FOR SCHEDULING OF DISCOVERY CONFERENCE
Dear Judge Oler:
On November 18, 1999 Plaintiff filed Motions to Compel production of documents from the law
firms of Morgan, Lewis & Bockius and Stradley, Ronon, Stevens & Young. As those are
discovery Motions they could not be listed on the docket for the regular argument court. Today
we are no closer to obtaining complete documents from these finns.
This is to request that the Motions be scheduled for a Discovery Conference before your Honor to
deal with the issues. Please advise if you would set up a Briefing schedule prior to the
conference or thereafter.
David S. Brady
cc: To Counsel as 1 dicated on Page two hereof
]' ,;
,
Judge Oler Discovery Conference Request
Page .2 .
. February 9, 2000
Stephen M. Donweber, Esquire Fax: 215-972-1836
Michael A. Finio, Esquire
SAUL, EWING, REMICK & SAUL LLP Phone: 215-972-8568
1500 Market Street, 38th Floor
Philadelphia, Pa 19102
Keith O. Brenneman, Esquire Fax: 697-7681
Snelbaker, Brenneman & Spare
44 West Main Street Phone: 697-8528
Mechanicsburg, P A 17055
Richard E. Connell, Esquire Fax: 232-2142
Ball, Murren & Connell
2303 Market Street Phone: 232-8731
Camp Hill, PA 17011
Ivo V. Otto, III, Esq. Fax: 243-1850
Martson, Deardorff, Williams & Otto
Ten East High Street Phone: 243-3341
Carlisle, P A 17013
Allen C. Warshaw, Esq. Fax: 232-4015
Jeffrey P. Ouellet, Esq.
Duane, Morris & Heckscher, LLP Phone: 237-5500
305 North Front Street, 5th Floor
POBox 1003
Harrisburg, PA 17108-1003
,
EXHIBIT F
RqBERT M. MUMMA, II, IN THE COURT OF COMMON PLEAS OF ,
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. CIVIL ACTION - LA W
CRH, INC., PENNSY SUPPLY, :
INC., LISA MORGAN,
BARBARA McKIMMIE
MUMMA, LINDA MUMMA
ROTH, MORGAN LEWIS AND :
BOCKIUS, STRADLEY,
RONAN, STEVENS AND
YOUNG,
Defendants NO. 99-1546 CIVIL TEIDv1
ORDER OF COURT
AND NOW, this \.5 t~ay of February, 2000, upon consideration of (a) Plaintiffs
Motion To Compel Production of Documents by Stradley, Ronan, Stevens & Young,
LLP, filed November 18, 1999, which was apparently listed for argument court in
contravention of Cumberland County Rule of Court 210-14 and has apparently not been
acted upon by the court, (b) the Answer of Defendant Stradley, Ronan, Stevens & Young,
LLP, to Plaintiffs Request for Production of Documents, which was apparently filed
prior to the filing of Plaintiffs motion, on July 28,1999, and (c) the attached letter from
Plaintiffs counsel, David S. Brady, dated February 9, 2000, it is ordered and directed as
follows:
1. The matter is stricken from any argument court list on which it may have
appeared or may appear; and
2. A discovery conference is scheduled on Plaintiffs Motion To Compel
Production of Documents by Stradley, Ronan, Stevens & Young, LLP, for Wednesday,
April 12, 2000, at 9:30 a.m., in chambers of the undersigned judge.
,
. BY THE COURT,
.
/'
-
David S. Brady, Esq.
4 Central Boulevard
Camp Hill, PA 17011
Attorney for Plaintiff
CRR, Inc.
3333 K Street, N.W.
Suite 405
Washington, DC 20007
Defendant, Pro Se
Pennsy Supply, Inc.
1001 Paxton Street
Harrisburg, PA 17101
Defendant, Pro Se
Ivo V. Otto, III, Esq.
10 East High Street
Carlisle, P A 17013
Attorney for Defendants
Lisa Morgan and
Barbara McKimmie Mumma
Allen C. Warshaw, Esq.
Jeffrey P. Ouellet, Esq.
305 North Front Street, 5th Floor
P.O. Box 1003
Harrisburg, P A 17108-1003
Attorneys for Defendant
Linda Mumma Roth
Keith O. Brenneman, Esq.
~ West Main Street
, echanicsburg, P A 17055
Attorney for Defendant
Morgan, Lewis and Bockius
,
. .
, Rithard E . Connell, Esq.
~Xl168
./ Camp Hill, PA 17011
Attorney for Defendant Stradley, Ronan,
Stevens & Young, LLP
:rc
DAVID S. BRADY, ATTORNEY
- .
4 Central Blvd. .
Camp Hill, Pa. 17011-4207
(717) 303-2080
Fax: (717) 303-2082
February 9, 2000
Judge J. Wesley 0ler, Jr
Court of Common Pleas
One Courthouse Square
Carlisle, P A 17013
RE: NOVEMBER 18, 1999 MOTION TO COMPEL PRODUCTION OF DOCUMENTS
FROM MORGAN, LEWIS & BOCKIUS AND STRADLEY, RONON, STEVENS &
YOUNG----LA W FIRMS
MUMMA VS. CRH ET AL
CASE NO. 99-1546
REQUEST FOR SCHEDULING OF DISCOVERY CONFERENCE
Dear Judge Oler:
On November 18, 1999 Plaintiff filed Motions to Compel production of documents from the law
firms of Morgan, Lewis & Bockius and Stradley, Ronon, Stevens & Young. As those are
discovery Motions they could not be listed on the docket for the regular argument court. Today
we are no closer to obtaining complete documents from these firms.
This is to request that the Motions be scheduled for a Discovery Conference before your Honor to
deal with the issues. Please advise if you would set up a Briefing schedule prior to the
conference or thereafter.
David S. Brady
cc: To Counsel as mdicated on Page two hereof
J:'C8
II
')
<'000
Judge Oler Discovery Conference Request
Pag~ 2 . ,
Febf\lary 9, 2000
Stephen M. Donweber, Esquire Fax: 215-972-1836
Michael A. Finio, Esquire
SAUL, EWING, REMICK & SAUL LLP Phone: 215-972-8568
1500 Market Street, 38th Floor
Philadelphia, Pa 19102
Keith O. Brenneman, Esquire Fax: 697-7681
Snelbaker, Brenneman & Spare
44 West Main Street Phone: 697-8528
Mechanicsburg, P A 17055
Richard E. Connell, Esquire Fax: 232-2142
Ball, Murren & Connell
2303 Market Street Phone: 232-8731
Camp Hill, P A 17011
Ivo V. Otto, III, Esq. Fax: 243-1850
Martson, Deardorff, Williams & Otto
Ten East High Street Phone: 243-3341
Carlisle, P A 17013
Allen C. Warshaw, Esq. Fax: 232-4015
Jeffrey P. Ouellet, Esq.
Duane, Morris & Heckscher, LLP Phone: 237-5500
305 North Front Street, 5th Floor
POBox 1003
Harrisburg, P A 17108-1003
, . .
EXHIBIT G
t
, : . IN THE COURT OF COMMON PLEAS OF . . .
ROBERT M. MUMMA , II, .
.
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
CRH, INC. , PENNSY SUPPLY, :
INC. , LISA MORGAN, :
BARBARA McKIMMIE MUMMA, :
LINDA MUMMA ROTH, MORGAN :
LEWIS & BOCKIUS, :
STRADLEY, RONAN STEVENS :
AND YOUNG, :
Defendant : No. 99-1546 CIVIL TERM
ORDER OF COURT
AND NOW, this 12th day of April, 2000, upon
consideration of Plaintiff's Motion To Compel Production of
Documents by Defendant Stradley, Ronan, Stevens & Young,
and following a discovery conference held on this date in
the chambers of the undersigned judge in which Plaintiff
was represented by David S. Brady, Esquire, Defendant
pennsy Supply, Inc. , was represented by Michael A. Finio,
Esquire, Defendants Lisa Morgan and Barbara McKimmie Mumma
were represented by Mark A. Denlinger, Esquire, Defendant
Linda Mumma Roth was represented by Allen C. Warshaw,
Esquire, Defendant Morgan, Lewis & Bockius, LLP, was
represented by Keith O. Brenneman, Esquire, and Defendant
Stradley, Ronan, Stevens & Young was represented by Richard
E. Connell, Esquire, it is ordered and directed that,
within 45 days of today's date, Defendant Stradley, Ronan,
Stevens & Young shall furnish to Plaintiff's counsel (and
to any counsel for a Defendant requesting the same) copies
, I
.
.
. . . of any minutes, stock ledger bo~ks, shareholders. . .
.
.
agreements, documents effecting the issuance of stock
certificates, and/or buy-sell agreements pertaining to Nine
Ninety Nine, Inc. , pennsy Supply, Inc. , Pennsylvania Supply
Company, Inc. , of Harrisburg, Kim Company, and pennsy
Supply Inc., in its possession at this time, excluding any
such items which have been furnished to Plaintiff or
Plaintiff.s attorney at No. 423-94 CIVIL TERM (Cumberland
County) , No. 4753-S 1993 (Dauphin County) or in the case of
RSE, Inc. , v. Hempt Brothers (Federal action).
Nothing herein is intended to adjudicate the
issue of responsibility for the expense involved in
production of these documents, nor to prevent the producer
of said documents from filing a motion at a later date
requesting reimbursement of those expenses from Plaintiff.
By the Court,
.-
1/
J.
/
David S. Brady, Esquire
For the Plaintiff
Michael A. Finio, Esquire
For Defendant pennsy Supply, Inc.
Mark A. Denlinger, Esquire
For Defendants Morgan and Mumma
Allen C. Warshaw, Esquire
For Defendant Roth
. I.
.
. · Keith O. Esquire. . " .
Brenneman, . .
. .
For Defendant Morgan, Lewis & Bockius
Richard E. Connell, Esquire
For Defendant Stradley, Ronan, Stevens & Young
CRH, Inc.
3333 K Street, N.W.
Suite 405
Washington, DC 20007
Defendant, Pro Se
wcy
.
. . -
. . .
. .
CERTIFICATE OF SERVICE
I, Richard E. Connell, Esquire, hereby certify that I placed a true and correct copy of the
foregoing documents in the U.S. Mail, first-class, postage prepaid to the following:
Brady L. Green. Esquire
Morgan, Lewis & Bockius
1701 Market Street
Philadelphia, P A 19103
Chadwick O. Bogar, Esquire
Miller, Lipsitt, LLC
2157 Market Street
Camp Hill, PA 17011
DATE j-/:l I/o I.j (~
Richard E. Connell, EsqUIre
MAY? 1 Z004 t \
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
IN RE: ESTATE OF : ORPHANS' COURT DIVISION
ROBERT M. MUMMA, .
.
Deceased . NO. 21-86-398
.
ORDER
AND NOW, this ~ay of May 2004, upon consideration of the Motion
For Protective Order filed by Robert M. Mumma II, i. i.:.l.....~(;.by UlJ"'H..d ClUJ ,1- nd tL.t
..D1)~_.t I.I.1.L~Hlua 11 nt:dl HUt "'V~hl"'l) "iLL th.. n'I!~" 'f1;\,;UlU It:l}Ut::sLi:> fL. In!ttlUiJRtlltioJll
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE ESTATE OF . ORPHAN'S COURT DIVISION
.
ROBERT M. MUMMA .
.
.
.
Deceased. . NO. 21-86-398
.
Witness and Exhibit List
AND NOW, pursuant to this Court's Order of March 24, 2004, Robert M.
Mumma, II (hereinafter "Objector"), provides the following Witness and Exhibit List.
Objector reserves the right to supplement this list as discovery proceeds:
Witness:
1. Jonathan M. Crist, Esq. (J.D., LLM-Taxation)
2. Susan Stott, Stott & Stott
3. Robert M. Mumma, II
:-'j
~.. 0
4. Barbara Mck. Mumma .::-:::.
5. Lisa Morgan :.:<
j.......)
--.I
6. Scott Morgan "C:J
i" ~.:..:
7. George W Hadley
8. David Landrey
9. E. Joseph Hochreiter
10. Representative(s) of the Department of Revenue
11. Donald Cromwell, Dauphin Deposit Bank
12. Barbara Mann Mumma
13. Linda Roth
14. Any and all employees, agents or representatives of Morgan Lewis & Bockius
identified or to be identified during discovery in this matter as having provided
services to the Estate or Marital Trust
15. Any and all employees, agents or representatives of Stanley, Ronon, Stevens &
Young identified or to be identified during discovery in this matter as having
provided services to the Estate or Marital Trust
Exhibits:
1. Pennsylvania Inventory Form.
2. Federal Estate Tax Return Form 706 wi Attachments.
3. Pa Inheritance Tax Return wi Attachments.
4. All documents attached to the Expert Report provided by Objector.
5. Closing Letter with all Attachments (Re: Change of Federal Return).
6. Documents from Department of Revenue (Re: Changes to Pa.
Inheritance Tax Return).
7. July 17, 1987 Memo regarding misfiling of Estate Tax Return.
8. Any and all share books and records for various corporations in which the Estate
has or had an interest.
9. Documents from Dauphin Deposit Bank evidencing entry into decedent's Safe
Deposit Box No. 3332.
10. Depositions, filings and exhibits from Robert M. Mumma II v. Dauphin Deposit
Bank and Trust Company, No. 4753-S-1993 (Dauphin County).
11. Pa. Revenue Form 485 - Safe Deposit Box Inventory Filed With Pa.
Department of Revenue.
12. Federal and State Fiduciary Income Tax Returns for the Estate (All Years).
13. April 27, 1989 Memorandum from David Landrey of Stanley, Ronon, Stevens &
Young.
14. Morgan Lewis & Bockius Invoices for Services Rendered to both the Estate and
Marital Trust.
15. Stanley, Ronon, Stevens & Young Invoices for services rendered to both the
Estate and Marital Trust.
16. Depositions, filings and exhibits from, Robert M Mumma, II v. eRR, pIc., et al.
No. 99-1546 (Cumberland County)
17. Depositions, filings and exhibits from High-Spec, Inc., et al v. Robert M Mumma,
et al. litigation filed in Florida.
18. Any and all documents evidencing the transfer, sale or liquidation of any assets
owned by, controlled by or allegedly owned or controlled by the Estate or Martial
Trust including those documents which are produced during discovery in this
matter.
19. Any and all depositions, filings and exhibits from any litigation in which the
Estate, the Marital Trust, or any beneficiary of the Estate or Trust is a party.
Respectfully submitted,
MILLER LIPSITT LLC
Dated CYS/:n/DLj By
P.O. Box 959
Camp Hill, P A 17001
(717) 909-5921
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
Witness and Exhibit List was served via first class United States mail, postage pre-paid
upon the following:
Ivo V. Otto, Esquire
Martson Deardorff Williams & Otto
Ten East High Street
Carlisle,PA 17013
Joseph A O'Connor, Jr., Esquire
Brady L. Green, Esquire
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, P A 19103-2921
Date: tF/-dl}; By:
No. 21-86-398
ORPHANS' COURT DIVISION
IN RE: ESTATE OF ROBERT M. MUMMA
STATEMENT OF GENERAL OBJECTIONS TO THE FIRST AND INTERIM
ACCOUNT FOR THE ESTATE OF ROBERT M. MUMMA, DECEASED AND THE
FIRST AND INTERIM ACCOUNTS FOR THE MARlr AL AND RESIDUARY
TRUSTS UNDER WILL OF ROBERT M. MUMMA, DECEASED
CHARLEs E. SHIELDS 1lI
AITORNEY-AT_LA W
COMMONWEALTH NATIONAL BAND BUILDING
2 W. MAIN STREET
MECHANICS BURG. PA 17055
N RE: ESTATE OF :IN THE COURT OF COMMON PLEAS OF
ROBERT M. MUMMA, Deceased :CUMBERLAND COUN1Y, PENNSYLVANIA
late of Cumberland County, : NO. 21-86-398
Pennsylvania :ORPHANS' COURT DIVISION
AND NOW COMES Robert M. Mwnma, II, individually, and Robert m.
Mununa,1I and Gary M. Gilbert, the court-appointed Guardians of the Estates of Susan
Mann Mumma and Marguerite Mann Mwnma, (hereinafter "Objectant") by their
attorneys, Charles E. Shields, Ill, of Mechanics burg, and William C. Costopoulos, of
Lemoyne, and respectfully represent:
1- Robert M. Mumma, II is a beneficiary under the duly probated will of his
father, Robert M. M\mUI1a, and is an interested party to these proceedings.
2. Robert M. Mumma, II and Gary M. Gilbert are the Guardians of tbe
Estates of Susan Mann Mumma and Marguerite Mann Mumma, having been appointed to
such position by Order of the Court of Common Pleas of York county, Pennsylvania,
Orphans' Court Division, dated October 4, 1991. Susan Mann Mumma and Marguerite
Mann Mumma are holders of shifting executory devises under the duly probated will of
their grandfather, Robert M. Mumma, and are also interested parties to these
proceedings.
3. The above parties have filed in conjunction with the general objections
hereinafter set forth certain specific objections to the First and Interim Account for the
Estate of Robert M. Mumma, Deceased and the First and Interim Account for the Marital
Trust under the will of Robert M. Mumma, Deceased. These specific objections are
incorporated herein by reference.
GENERAL OBJECTIONS
1. Improper Division of Family Assets
4. In addition to the aforesaid specific objections, the Objectants hereby filed
a general objection to the administration of the Estate of Robert M. Mumma, Deceased,
and the Marital and Residuary Trusts created under the will of Robert M. Mumma on the
basis that Barbara McK. Mumma and Lisa M. Morgan, in their capacities as executrices
and trustees, have breached their fiduciary duties to the beneficiaries under the
Decedent's will by systematically engaging in acts of self-dealing and personal
enhancement with the intention of ultimately vesting in their individual control the family
I
enterprises in which the Decedent, Robert M. Mumma, had an interest at the time of his
death. Such actions are not only in violation ofllie Pennsylvania statutory and judicial
prohibitions against self-dealing and the Pennsylvania statutory prohibitions against
actions by interested directors and shareholders, but are also in direct contravention of the
Decedent's testamentary intention that his family enterprises ultimately pass to his four
children in equal shares. In support of this objection, the Objectant specifically aver the
following:
(a) Barbara McK. Mumma and Lisa M. Morgan, in their capacities as
executrices and trustees, have intentionally allocated stock in the Decedent's family
enterprise to the martial trust created under the Decedent's will in order to subject such
stock to the withdrawal power that Barbara McK. Mumma has over such trust.
(b) To date, Barbara McK. Mumma and Lisa M. Morgan have
diverted to Barbara McK. Mumma through her withdrawal power the following shares of
stock:
(i) 195.842 shs. of common stock of Nine Ninety-Nine, Inc.
(ii) 118.268 shs. of preferred stock of Nine Ninety-Nine, Inc.
(iii) 30.75 shs. of Hummelstown Quarries, Inc.
(c) By diverting such stock to Barbara McK. Mumma she now holds
in her individual capacity the following percentages of stock originally held by the
Decedent's estate:
(i) 29.96% of common stock of Nine Ninety-Nine, Inc.
(ii) 14.26% of preferred stock of Nine Ninety-Nine, Inc.
(iii) 5% of Hununelstown Quarries, Inc.
(d) The Objectants believe, and therefore aver, that Barbara McK.
Mumma ultimately intends to either transfer such shares by will or gift to her daughter,
Lisa M. Morgan, so that her daughter will eventually own a majority interest in such
family enterprises, or Barbara McK. Mumma intends to sell such stock and to leave the
proceeds therefrom to her said daughter so that she will receive more than her allotted
one-fourth share of the value of the family enterprises.
(e) Given the present life expectancy of Barbara McK. Mumma, it is
anticipated that she will, in time, be able to withdraw from the marital trust sufficient
shares of stock that, when coupled with the shares of stock passing to Lisa M. Morgan
upon the termination of such trust, her said daughter will be able to either exercise control
over the family enterprises or, in the event of a subsequent sale, to receive more than her
allotted one-fourth share of the value of the family enterprises.
(f) The aforesaid plan of Barbara McK. Mwnma and Lisa M. Morgan
is evident from the fact that, at the end of 1987, they rushed to distribute to the marital
trust certain stock in the family enterprises so that Mrs. Mumma could exercise her 1987
withdrawal right over such stock. Had the executrices delayed the funding of the ma
trust Wltil the beginning of 1988, Mrs. Mwnma's withdrawal right for 1987 would h
irrevocably lapsed. The haste with which the aforesaid distribution was consummat
evident not only from the date on which it purportedly occurred (December 27, 198'
also from the fact that copies of MIs. Mumma's actual withdrawal requests are
incomplete in certain important respects including valuation of the underlying trust
assets.
(g) The actions of Barbara McK. Mumma and Lisa M. Morgan 1
any pretense that the withdrawal distributions to Mrs. Mwnma were intended to all
any financial hardship that she may have been purportedly experiencing. If such h
had existed, it would obviously have been preferable to distribute to her cash, othe
assets or marketable real estate. Instead, the trustees have consistently and exclusi
distributed non-marketable closely held stock. Furthermore even the relative perce::
of the actual stock distributed to Mrs. Mumma reflect the trustees' goal of achieviJ
control over the family enterprises since, on a percentage basis, Mrs. Mumma has
received mice as much common stock as preferred stock, even though only the la
stock is income producing.
(h) By engaging in the aforementioned scheme to systematical
stock in the Decedent's family enterprises to Barbara McK. Mumma., the executri
trustees have not only breached their fiduciary duty to the beneficiaries under the
Decedent's will by acting solely for their own aggrandizement, but they also darn
such beneficiaries in the following respects:
(i) By allocating stock in the family enterprises to the marital
trust the Decedent's estate was needlessly forced to incur capital gains of$1,170.687.9O
which resulted in the payment of over $360,000.00 in fiduciary income taxes for the year
of funding. These taxes were attributable to the fact that funding a pecuniary marital trust
with property-in-kind is a taxable event for federal income tax purposes. Had the
executrices allocated the same stock in the family enterprises to the residuary trust sucb
an allocation would not have resulted in the payment of any income taxes. However, the
executrices were unwilling to allocate such stock to the residuary trust, notwithstanding
the obvious income tax advantages resulting therefrom, because Mrs. Mwnma was not
vested with a withdrawal right over the assets in such trust. Rather than frustrate their
own scheme to wrest individual control over the family enterprises, the executrices
elected to needlessly incur $360,000.00 in capital gains taxes.
(ii) By fully allocating the common stock in Nine Ninety-Nine,
Inc. to the marital trust, the executrices have jeopardized the continued qualification of
such trust for the federal estate tax marital deduction. Under current law, in order for a
trust to qualifY for the federal estate tax marital deduction, the trust must be income-
producing. As evidenced by the First and Interim Account filed by the executrices in the
Decedent's estate, the common stock of Nine Ninety-Nine, Inc. is non-income producing.
I
As such, prudent estate planning would dictate that, to the fullest extent possible, such
stock should be allocated to the non-marital residuary trust since this latter trust need not
be income-producing. However, allocation of such stock to the residuary trust would
place such stock outside of the withdrawal right of Mrs. Mumma. Rather than frustrate
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their own scheme to wrest individual control over the family enterprises, the executrices
elected to risk potential disqualification of the marital trust by allocating such stock of it.
(iii) By fully allocating the common stock in the family
enterprises to the marital trust the executrices have needlessly and imprudently subjected
such stock to federal estate taxation upon the death of Barbara McK. Mwnma. Under
cwrent law, assets allocated to the decedent's marital trust are subject to federal estate
taxation upon the death of the decedent's spouse, which assets allocated to the decedent's
non-marital residuary trust pass tax-free. For this reason, prudent estate planning dictates
that assets which are expected to greatly appreciate in future value, such as common
stock in closely-held family enterprises like Nine Ninety-Nine, Inc., should be allocated
to a decedent's non-marital trust rather than the marital trust. In so doing, all post-death
appreciation in the value of such stock will escape death taxation. However, in the
present instance, allocation of the common stock of Nine Ninety-Nine, Inc. to the
Decedent's non-marital residuary trust would preclude Mrs. Mumma from exercising her
withdrawal right over such stock. Rather than frustrate their own scheme to wrest
individual control over the family enterprises, the executrices elected to subject such
stock to federal estate taxation upon the death of Mrs. Mumma.
(iv) By withdrawing from the marital trust the stock in the
family enterprises the executrices have needlessly and imprudently subjected such stock
to Pennsylvania inheritance taxation. Under current law, assets held in a decedent's
marital trust are not subject to Pennsylvania inheritance taxation upon the death of the
decedent's spouse. conversely, assets held outright by the spouse are subject to
inheritance taxation upon the spouse's death. For this reason, prudent estate planning
les that, to the fullest extent possible, assets should remain in the decedent's marital
rather than being withdrawn. This is especially true since the spouse receives the
e from such assets even though they remain in trust. However, in the present
tion, to allow the stock in the family enterprises to remain in the marital trust of
ert M. Mumma would result in such stock passing to the decedent's fout children in
i shares and would preclude Lisa M. Morgan from eventually attaining majority
trol over the family enterprises. Rather than trustTate their own scheme to wrest
vidual control over the family enterprises, the ex.ecutrices have elected to subject the
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k in such enterprises to pennsylvania inheritance taxation upon the death of MIs.
II. 1m-permissible Withdrawals
5. In addition to the general objections set forth above with respect to the
trices' utilization of Barbara McK. Mumma's withdrawal right over the marital
t to circwnvent the testamentary intentions of the Decedent, the following additional
~ections are raised with respect to the ex.ercise of such withdrawal right:
(a) The withdrawal right granted to Barbara McK. Mumma over the ;
arital trust does not vest her with a corresponding right to select individual assets of the .
~
st to fund the same. Instead, it only gives her a right to receive a designated dollar/'
ooot from the trust equal to $5,000.00 or 5% of the current value of the trust,
hichever is greater. In electing to fund this amount with assets-in-kind, this transaction
treated for federal income tax pwposes as a sale of the distributed assets to Mrs.
wnma. Analogously, the essence of this transaction for state law purposes is a sale of
ock by the marital trust to Mrs. Mumma or, conversely, a purchase of stock by Mrs.
~
Mwnma, with the consideration for such purchase being the cash amount due her under
her withdrawal right. As such, this transaction falls squarely within the statutory
provisions governing self-dealing transactions between a fiduciary and an estate or trust.
Have failed to secure the requisite court approval before engaging in such transfers, the
sales of stock to Barbara McK. Mwnma arising from the ex'ercise of her withdrawal right
should be nullified.
(b) Pursuant to the liquidation of the Decedent's interest in
Permsylvania Supply Company, Inc., the Decedent's interest in Nine Ninety-Nine, Inc.,
Hummelstown Quarries. Inc. and Union Quarries, Inc. became subject to a right of first
refusal in the Decedent's four children, including the Objectant, Robert M. Mumma, II.
By allocating the stock of such companies to the marital trust, and especially by utilizing
such stock to fund the withdrawal right of Barbara McK. Mumma, the executrices and
trustees violated the right of first refusal held by Robert M. Mumma, II and such transfers
should, therefore, be nullified.
(c) Under the operative terms of the will of Robert M. Mwnma, in
funding the withdrawal right of Barbara McK. Mumma over the marital trust, the trustees
of such trust are required to revalue the trust assets each time such right is exercised.
From 1998 onward, the trustees have failed to annually revalue the marital trust assets in
computing the allowable withdrawal amounts, thereby violating the plain directive of the
Decedent's will. Objection is hereby made to the trustees' failure to cany out the terms of
the Decedent's will.
(d) Objectants believe, and therefore aver, that in exercising the 1987
withdrawal right over the marital trust, the executrices overfunded such right and may
have subsequently altered the estate records to comport therewith. In support of this
objection, the Objectants note that on the estate's status report dated May 16, 1988,
counsel for the estate swore under oath that the value of the distributions made as of such
date by the estate to all beneficiaries, including beneficiaries other than the marital trust,
totaled $4,000,000.00. However, the 5% withdrawal amount made by Mrs. Mumma in
December of 1987 was predicated upon a marital trust value of $5,516,231.00. Even if
the full $4,000,000.00 shown on the status report had been fully allocated to the marital
trust, this would still leave such trust with a valuation deficit of $1 ,516,231.00. Objectant
, believe that the executrices improperly assumed in December of 1987 that there was no
need to make an actual funding of the marital trust in order to exercise Mrs. Mumma's
withdrawal right, but instead felt that such right could be exercised over assets still held
in the estate which were eannarked for distribution to the marital trust. As evidence of
this misapprehension on the part of the executrices, Objectants note that the withdrawal
docwnents executed by Mrs. Mumma attempt to exercise her withdrawal right both over
assets held in the marital trust and assets held in the estate but allocable to the marital
trust. Objectants believe, and therefore aver, that the executrices, acting under this
misapprehension, either failed to fund or only partially funded the marital trust at the time
. of Mrs. Mumma's purported exercise in 1987. Subsequently, when the executrices
learned that the withdrawal right only extended to assets actually within the marital trust,
the executrices may have altered estate records to give the appearance of a full funding of
such trust, instead of allowing Mrs. Mumma to partially waive her 1987 withdrawal right.
any such waiver would have delayed the effectuation of their scheme to divert stock in
the family enterprises to their individual control.
~Y1
III. Failure to Maximize Asset Values
6. In order to effectuate their scheme to gain control of the Mumma family
enterprises, Lisa M. Morgan and Barbara McK. Mumma have refused to entertain offers
for the sale of such enterprises, other than an offer by a foreign purchaser who, through
an improper side agreement, would have guaranteed them employment with the
purchaser. By refusing to consider offers for the sale of the family enterprises, the
executrices have breached their fiduciary duty to maximize the underlying value of the
assets in the estate. Accordingly, Objectants file a general objection thereto.
(a) In support of this objection, the Objectants note that Robert M.
Mumma. II has on numerous occasions attempted to negotiate with Barbara McK.
Mumma and Lisa M. Morgan for the purchase of substantial and significant portions of
the Decedent's family enterprises. On each and every occasion he has been willing to
acquire such assets at a value substantially in excess of their fiduciary carrying value.
However, his efforts to purchase such assets have been continually thwarted by the
executrices without any justification.
(b) Attorneys for Lisa M. Morgan and Barbara McK. Mumma have
advised Robert M. Mumma, II that the executrices will not consider any further offers for
the sale of the family enterprises. By refusing to explore any efforts to sell the family
enterprises, regardless of the value of the offers that may be forthcoming or the
advantageous terms and conditions attendant thereto, the executrices have unjustifiably
failed to exercise the minimum responsibility expected of all fiduciaries in the
Commonwealth ofPexmsylvania. This action becomes all the more egregious in the
present instance since Objectant believe that Lisa M. Morgan and Barbara McK. Mumma
have undertaken this action solely to advance their own financial interests through
individual control Over the Decedent's family enterprises.
(c) although Objectants note that it was the intention of the Decedent
that his family enterprises remain in the Decedent's testamentary trusts until such
enterprises passed to his children in equal shares, this intention is obviously not the
reason that the ex.ecutrices have refused to sell the family enterprises since, as noted
heretofore, the executrices have systematically engaged in an effort to divert control of
the enterprises to themselves individUally. Moreover, this defense is specifically not
applicable to Robert M. Mumma, II since all parties having a viable interest in the
Decedent's trusts have in the past agreed that he should have a right of first refusal over
the family entexprises and should be pennitted to acquire the same.
(d) The executrices cannot justify their retention of the family
enterprises from a tax standpoint. As noted previously, retention of the family enterprises
will not forestall the realization of any inherent gain therein since the executrices, by
effectuating their diversionary scheme, have already been forced to realize such gain both
upon the funding of the marital trust and the funding of Mrs. Mumma's withdrawal right.
Additionally, any sale of the family enterprises would make the marital trust more liquid
and more income-producing, thereby helping to prescxve the marital deduction for such
trust.
(e) The refusal of Barbara McK. Mwnma and Lisa M. Morgan to even
entertain offers for the sale of the Decedent's family enterprises is part and parcel of their
plan to divert such assets to themselves in derogation of the best interests of the heirs
under the Decedent's will and in contravention of the Decedent's testamentary plan. Such
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action constitutes not only a basis for a general objection to their administration of the
Decedent's estate and trusts, but also strong grounds for their removal from their present
fiduciary positions.
IV. Acts of CotpOrate Self-Dealing,
7. During the course of their administration of the Decedent's family
enterprises, Barbara McK. Mumma and Lisa M. Morgan, in their fiduciary capacities as
executrices and trustees, have utilized their majority control over such enterprises to
engage in acts of self-dealing for their personal benefit to the detriment of the heirs under
the will of Robert M. Mumma. Accordingly, the Objectants specifically object to all
actions taken by the executrices and trustees during the administration of the family
enterprises which involve either self-dealing or personal enhancement.
(a) Despite repeated requests by or on behalf of the Objectant, Robert
M. Mwnma, II, the e~ecutrices and trustees have failed to divulge any information
concerning salaries, expense accounts, perquisites, or other benefits that they have
personally derived from the family enterprises during their administration thereof. In
addition, they have failed to divulge any information concerning contracts, agreements or
other business relationships that may exist between the family enterprises and other
entities in which they have an interest, nor have they divulged any information
concerning fees, salaries or retainers paid to firms in which they now have or have had a
personal interest or which have assisted them during the administration of the Decedent's
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estate and trusts.
(b) The will of Robert M. Mununa does not contain any provision that
specifically authorizes the executrices or trustees to hire or retain themselves for financial
remuneration as officers, directors, agents or employees of the Decedent's family
enterprises. Absent such specific authorization, any such action constitutes
impennissible self-dealing. In addition, any agreements between the family enterprises
! and the executrices (or entities in which they have an interest) my be violative of the
Pennsylvania Business Corporation Law of 1988 (15 P A. C.S.A. s 110 et seq.) which
: precludes directors and shareholders from entering into agreements with their respective
corporations unless a majority of disinterested directors or shareholders approve the
same.
(c) The Objectants believe, and therefore aver, that during their
administration of the Decedent's family enterprises, Barbara McK. Mwmna and Lisa M.
, Morgan have systematically engaged in acts of self-dealing without specific authorization
under the Decedent's will, they have acted for their won personal aggrandizement and
they have repeatedly violated the statutory constraints imposed under the Pennsylvania
! usiness Corporation Law. Therefore, objection to such action is specifically made.
,
:1 V. Reservations ofObiections
'1 i, 8~ ~~ ~ghl to raise such additional objections as f.~ Oft<!
~dence f\" uced thiiougll fufttte diSCu -"Of}' my "'" '" -iea:
I
I WHEREFORE, the Objectant respectfully requests this Honorable Court to enter
\
, Decree or Decrees to:
,
I 1. Revoke the distribution of the stock in the family enterprises to Barbara
~cK. Mumma.
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remuneration as officers, directors, agents or employees of the Decedent's family
enterprises. Absent such specific authorization, any such action constitutes
impermissible self-dealing. In addition, any agreements between the family enterprises
and the executrices (or entities in which they have an interest) my be violative of the
Pennsylvania Business corporation Law of 1988 (15 P A. C.S.A. s 110 et seq.) which
precludes directors and shareholders from entering into a~eements with their respective
corporations unless a majority of disinterested directors or shareholders approve the
same.
(c) The Objectants believe, and therefore aver, that during their
administration of the Decedent'S family enterprises, Barbara McK. Mumma and Lisa M.
Morgan have systematically engaged in acts of self-dealing without specific authorization
under the Decedent's will, they have acted for their won personal aggrandizement and
they have repeatedly violated the statutory constraints imposed under the Pennsylvania
Business Corporation Law. Therefore, objection to such action is specifically made.
V. Reservations of Objections
. 8~ ~ ~~ ~ght to raise such additional objections as fa9l1ftd
eVidence RfO uced throygh fuMe discovery my J!~
WHEREFORE, the Objectant respectfully requests this Honorable Court to enter
a Decree or Decrees to:
1- Revoke the distribution of the stock in the family enterprises to Barbara
McK. Mumma.
2. Surcharge the executrices/trustees for the capital gains tax incurred upon
funding the marital trust with the stock of the family enterprises, or in distributing the
stock therefrom.
3. Surcharge the executrices/trustees for the loss of the benefit of the bargain
in failing to (i) sell the stock in the family enterprises to Robert M. Mumma, II or (ii)
actively market such stock with third parties.
4. Deny all compensation to the executrices/trustees, whether the same was
received from the decedent's estate, the trusts under the decedent's will or the decedent's
family enterprises.
5. Reduce or deny compensation to Morgan, Lewis &Bockius and Lucker,
Kennedy & Felmeden, whether the same was received from the decedent's estate, the
trusts under the decedenfs will or the decedent's family.
6. Surcharge the executrices/trustees for all acts of self-dealing, whether the
same occurred during the administration ofthe decedent's estate, the trusts Wlder the
decedent's will or the operation of the decedent's family enterprises, and invalidate any
agreements or actions that they have made or taken in violation of the Pennsylvania
Business Corporation Law or Pennsylvania Estates, Trusts and Fiduciaries code.
7. Surcharge the executrices/trustees for the costs, fees, and expenses which
have been paid or incurred by Objectant to protect their interests in the estate and trusts as
a result of the improper administration by the executrices/trustees, including without
limitation Objectant's attorneys' fees and costs, plus interest.
8. Additionally, Objectant requests that the Court not approve the accounts
as filed, surcharge the executrices/trustees for any losses to the estate or trusts resulting
from the serving actions taken by them, and take such further action as the Court deems
appropriate to preserve the estate and trusts for the benefit of the residuary beneficiaries
and any other persons in similar circumstances.
Respectfully submitted,
Charles E. Shields, III, Esquire
Commonwealth National Bank Bldg.
2 West Main Street
Mechanicsburg, Pa 17055
(717) 766.0209
1.0. # 38513
William C. Costopoulos
831 Market Street
Lemoyne, PA 17043
(717) 761-2121
By
Charles E. Shields, III
Attorneys for Objectant
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of the
foregoing was served via first class United States mail, postage pre-paid upon the
following:
Ivo V. Otto, III, Esquire
Martson Deardorff Williams & Otto
Ten East High Street
Carlisle, PA 17013
Joseph A. O'Connor, Jr., Esquire
Brady L. Green, Esquire
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103-2921
Date 05/d. 7 /0<-; By
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