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HomeMy WebLinkAbout01-18-02 WEST LONG LLC 105 North Front Street Suite 205 Harrisburg, PA 17101 (717) 233-5051 q c:J ci- f"'" utlj ~ : IN THE COURT OF COMMON PLE~A~~ :: : CUMBERLAND COUNTY, PENNSAN!ACD . ~l.....J --;1 . ~n ~ :No. 423-1994 ~~ r- z:.:> ::::! 0 ROBERT M. MUMMA, II Plaintiff G-A-T DISTRIBUTION, Defendant : CIVIL ACTION - LAW MOTION FOR COMMISSION TO TAKE DEPOSITIONS AND TO PRODUCE DOCUMENTS AND NOW, comes the Plaintiff, Robert M. Mumma, II, pursuant to 42 Pa.C.S. ~5235 and Pa.R.C.P. ~4015 and respectfully moves this Court to enter an Order granting the Commission to take the deposition of George W. Hadley who resides in Buffalo, New York and to require him to produce documents within his possession and control and avers as follows: 1. The Complaint in the above-captioned case was filed by the Plaintiff, Robert M. Mumma, II, to determine the validity of the sale of Hurnmelstown Quarry, Inc. ("HQI"). 2. The Plaintiff, Robert M. Mumma, II, has been attempting to obtain access to the books and records of the various Mumma Entities, including the Hurnrnelstown Quarry, Inc. ("HQI") that is the subject of this litigation and Pennsylvania Supply Company and successor entities known as Pennsy Supply Inc. (note no comma) and Pennsy Supply, Inc. (note the comma).! ! As will be discussed in this Motion and attached Affidavit, Pennsy Supply was really two (and possibly more) companies, one Pennsy Supply (no comma) Inc. and one Pennsy Supply, Inc. the only difference being the comma. Obviously this has led to much confusion and created numerous opportunities to deceive individuals who did not know of the multiplicity of corporations using the Pennsy Supply name. o -,1 ---l ;ri ,=g ...,--,'cn ~:7:.(:J C)t";L\ -1,~ S~~ u _.~ ~~ "'~') =< 3. As has been set forth in the pleadings, briefs and exhibits filed in this case, it is imperative that Robert M. Mumma, II obtain complete knowledge of the corporate structure of Pennsylvania Supply Company, it successors and subsidiaries because the number of his shares in HQI/GA T will be determined in proportion to his share and ownership interest in Pennsylvania Supply Company. 4. Robert M. Mumma, II has been consistently denied access to information from which he could make a determination as to the legitimate formation ofHQI, the legitimacy of the sale ofHQI to CRH and/or the amount and value of any pro rata share if a corporation known as HQI was formed and sold resulting in the issuance of GAT stock for the purpose of offering the Plaintiff dissenters' rights. (See Reply to JIew Matter)2 5. This Court has had before i. several examples of the type of difficult and diversionary discovery which has been onestrated by the Defendant and others who have aligned themselves with the executrixes 0 'Ie Estate of Robert M. Mumma, Sr. in an attempt to permanently block Robert M. Mumma, II rom independently reviewing the relevant records and 2 As was pointed out in the Plaintiffs Answer to New Matter filed in this case, Robert M. M=a, II was told by the executrix of the Estate of Robert M. M=a, Sr. that the Hummelstown Quarry property was going into a tenancy in common arrangement with the other heirs of the Estate and not into a separate corporation. This appears to be a misrepresentation. The executrixes created the H=elstown Quarry corporation in secret. There was never an appropriate corporation formation meeting but nonetheless the executrixes have ever since contended that the Hummelstown Quarry took on a corporate,form which enabled the executrixes to sell the quarry and to give Robert M. Mumma, II dissenters' rights under fue Pennsylvania Business Corporate law as opposed to a right of first refusal under tenants in common law. We believe that access to fue records will show that fue very reason for forming Hummelstown Quarry was to avoid fue promised joint tenancy arrangement and to enable the sale of Hummelstown Quarry as a corporate entity against fue wishes of Robert M. MUUlIDa, II and his deceased father. This will support and inference fuat the whole transaction was initiated in bad faith by the executrixes and strengthen the position that HQI has been very badly undervalued. 2 discovering facts relating to the formation and ownership ofHQI as well as the other Mumma related entities such as Pennsylvania Supply Company and Pennsy Supply, Inc. and Pennsy Supply Inc.' 6. The present witness, George W. Hadley, is in possession, custody and control of additional documents that are material, relevant and necessary to the prosecution of Plaintiff's claim before this Court. (See-Affidavit of Robert M. Mumma, II attached hereto as Exhibit A.) 7. The witness, George W. Hadley, served as the accountant and advisor for the companies referred to herein subsequent to 1986 and a senior partner in his accounting firm, Karl Felmeden, served as the accountant and advisor for these companies during the late 1950's until the time of his death in 1986 and his records, notes, correspondence and documents relating to this matter would be in the custody and control of the witness, George W. Hadley. Hadley has care, control and custody of documents relating to insurance on the life of Robert M. Mumma, II and his father and other officers and key employees of the various corporations involved which insurance could obviously have as it purpose the funding of buy-backs required by shareholder and buy/sell agreements. Hadley also has control over the documents that would deal with and explain the formation of the two Pennsy Supply Inc. companies (one with a comma, one without a comma); the existence of any additional shareholders agreements covering Pennsylvania Supply Company shareholders; the estate plan of Robert M. Mumma, Sr. developed by his predecessor, Karl Felmeden, and/or George Hadley; the direct and circumstantial evidence that shareholder agreements existed for Pennsylvania Supply Company and other Mumma entities; , These discovery difficulties are detailed in the Plaintiff's Motion to Inspect and Copy Records which was filed on February 28, 2000 in support of obtaining access to records in the care, custody and control of David R. Landry of Stradley, Ronon, Stevens and Young. 3 correspondence relating to the due diligence examinations conducted by perspective purchasers (particularly showing the inquiries made and explanations given for the lack of any shareholder agreements and the existence of multiple Pennsy Supply companies); the manner and means of valuation and sale of 85 shares of stock upon Robert M. Mumma, Sr.' s death; the existence and terms of any redemption agreement or appraisal allowing such valuation; the manner and means by which stock was valued on financial statements of Robert M. Mumma, II and his father; financial documents from which it can be determined what assets belonged to Pennsy Supply, Inc. (the comma company) and what belonged to Pennsy Supply Inc. (the no comma company); how assets of the two Pennsy '~:Jpply companies were valued and owned; and the identities of individuals who made the de' jons or gave his firm instructions not to produce records involving these companies to Rol M. Mumma, II notwithstanding the fact that Robert M. Mumma, II was an officer, director, sl ',holder and had a substantial ownership interest in the companies referred to as well as beint '0 heir to the estate that purported to own and operate those companies. In addition, Hadley m, [laVe records relating to the creation of Hummelstown Quarries, Inc. as well as correspondence d other documents relating to the rejection of Robert M. Mumma, II's offer to buy assets frc . de Estate as opposed to CRH and explaining why Robert M. Mumma, II's higher purchase offers were rejected. 8. No undue prejudice to any party or witness will result from the issuance of this Commission. 4 9. Copies of the proposed Order and Commission are attached to the front of this Motion. WHEREFORE, the Plaintiff, Robert M. Mumma, II, respectfully requests this Court to enter an Order granting a Commission in this action. Dated: January 18, 2002 5 CERTIFICATE OF SERVICE I hereby certifY that on this 18th day of January, 2002, a true and correct copy of the foregoing Motion for Commission to Take Depositions and to Produce Documents was served upon the party named below via first class mail, addressed as follows: Brady L. Green, Esquire Morgan, Lewis & Bockius, LLP 2000 One Logan Square Philadelphia, P A 19103 [;do/)//XV' .il ../}/7/~/ oanne M. Bennett Paralegal to James 1. West, Esquire