Loading...
HomeMy WebLinkAbout12-24-08E~FILES'~Clients\Mumma 5844.1 (estate) 8747 (Kim)\5844. LMumma Estate\5844.1.398secondpetition Geared: 920104 0:06PM Reeised: 12!24108 8:~6AM George B. Faller, Jr., Esquire n f:~ , LD. No. 49813 ~.v ~ -;,:_~=_~ Jennifer L. Spears, Esquire ~' ,..~ LD. Number 87445 ;: ~ =, rv ,= ' ~ ~, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER _ ~ ~ r- MARTSON LAW OFFICES - ; . -._; .= -. -- _ ' `, 10East High Street _ _ -- Carlisle, PA 17013 y rv ~ ~ ` ~~ (717) 243-3341 '~' Attorneys for Barbara McK. Mumma and Lisa M. Morgan IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: Estate of Robert M. Mumma, NO. 21-86-398 Deceased ORPHAN'S COURT DIVISION SECOND PETITION FOR JUDICIAL NOTICE AND NOW, come Lisa M. Morgan and Barbara McK. Mumma, by and through their attorneys MARTSON DEARDORFF WILLIAMS OTTO GILROY AND FALLER, and bring this Petition for Judicial Notice pursuant to PA Rule of Evidence 201, and avf;r as follows: 1. Petitioners are Lisa M. Morgan and Barbara McK. Mumma ("the Executrices"). 2. Respondent is Robert M. Mumma, II. 3. On May 30, 2008 Petitioners filed a Petition for Judicial Notice requesting that Court take judicial notice of the following Court Orders, which were attached to that Petition: a. On February 13, 1989, this Court entered an Order and Opinion in Barbara McK. Mumma, et al. v. Robert M. Mumma II et al., No. 66 Equity 1988 (Cumberland County Court of Common Pleas) and No. 21-86-398 (Cumberland County Court of Common Pleas -Orphan's Court Division). b. On March 24, 1992, this Court entered an Order and Opinion in Barbara McK. Mumma, et al. v. Robert M Mumma II et al., No. 66 Equity 1988 (Cumberland County Court of Common Pleas). c. On November 5, 1992, this Court entered an Order and Opinion in Barbara McK. Mumma et al. v. Robert M. Mumma II et al., No. 66 Equity 1988 (Cumberland County Court of Common Pleas). d. On August 4, 1993, this Court entered an Order anti Opinion in In Re: Estate of Robert M. Mumma, Deceased, No. 21-86-398 (C'umberland County Court of Common Pleas -Orphans' Court Division). e. On July 29, 2002, this Court entered an Order and Opinion in Robert M. Mumma, II v. Pennsy SUppl~nc , No. 99-2765 (Cumberland County Court of Common Pleas). 4. The Executrices are unaware of any response filed to that Petition, or any Order entered as a result. The Executrices also move for the Court to take Judicial Notice of the memorandum Opinion of the Superior Court in Barbara McK. Mumma, et al. v. Robert M. Mumma, II, et al., No. 56 Harrisburg 1993, affirming the Order entered November 5, 1992 in Barbara McK. Mumma et al. v. Robert M. Mumma II et al , No. 66 Equity 1988 (Cumberland County Court of Common Pleas). A copy of the Order and Opinion is attached hereto as Exhibit "A." 6. The contents of certified copies ofpublic records are deemed. to beself-authenticating pursuant to PA Rule of Evidence 902(4). The Honorable J. Wesley Oler, Jr., has ruled in this action. 8. Counsel for Barbara McK. Mumma and Lisa M. Morgan have not contacted Mr. Mumma, II as to his concurrence to this Motion; however, it is assumed hey would have opposed it. WHEREFORE, Petitioners respectfully request that this Honorable Court take judicial notice of the above-listed orders and decisions, specifically including the Superior Court Order and Opinion attached hereto. MARTSON LAW OFFICES `~ M may` ._ V ' By r George B Fa er, Jr., Esquire Jennifer L. Spears, Esquire 10 East High Street Carlisle, PA 17013 (717)243-3341 Attorneys for Attorneys for Barbara McK. Mumma and Lisa M. Morgan Date: December 24, 2008 J. A37040/'93 BARBARA MCK. MUMMA AND , LISA M. MORGAN, , INDIVIDUALLY AND AS , EXECUTRICES OF AND TRUSTEES UNDER THE WILL OF ROBERT M. MUMMA, DECEASED AND LINDA . M. BOTH, , APPELLEE , v. ROBERT M. NlLTMMA, II AND , BARBARA M. MC CLURE, . APPEAL OF : ROBERT M . MUNA9A, I I IN THE SUPERIOR COURT OF PENNS~'LVANIA N0. 56 HARRISBURG 1993 Appeal from the Order entered November 5, 1992 docketed November 6, 1992 in the Court of Common Pleas of Cumberland County, Civil Division, at No. 66 Equity 1988. BEFORE: DEL SOLE AND HOFFMAN, JJ. MEMORANDUM: F 1 L E D NOV -- 51993 This is an appeal from the February 13, 1989, March 24, 1992 and November 5, 1992 trial court orders in an eQU;r_v arr;r,n concerning Appellant's threatened attempts to disrupt a proposed sale of stock and realty held by himself and Appellees as tenants- in-common. Finding no abuse of discretion or error of~ law by the trial court, we affirm. The parties to this action are members of the Mumma family, which has been in the construction and concrete business in the central Pennsylvania area for generations. In 1921, Walter Mumma founded Pennsylvania Supply Company, Incorporated, and in 1947, his son, Robert M. Mumma, Sr. founded Kim Company, Incorporated. EXHIBIT "A" J. A37040/93 - 2 Robert M. Mumma, Sr. and his wife, Barbara McK. Mumma ("Mrs. Mumma"), who is an appellee in this action, had four children: Robert M. Mumma, II ("Bob"), who is the appellant in this action; Lisa M. Morgan ("Lisa") and Linda M. Roth ("Linda"}, who are appellees in this action; and Barbara M. McClure ("Barbara"). The underlying facts in the present action have been aptly summarized by the trial court as follows: Mrs. Mumma and Lisa Mumma Morgan are executrices of the Estate of Robert M. Mumma [Sr.].1 They, .along with plaintiff Linda M. Roth, Robert M. Mumma, II, and nominal defendant Barbara M. McClure, are the former shareholders of Kim Company and Pennsylvania Supply Company, Harrisburg, Pennsylvania. On December 19, 1986, those two corporations were liquidated and their respective assets were conveyed to the former shareholders of the corporation as tenants-in-common. Two written agreements among tenants-in-common were executed by the former shareholders contemp raneously with the liquidation of the corporations. Bob signed those two agreements, commonly referred to as MRA I and MRA II, on December 19, 1986. By it:s terms, MRA I expressly governed the properties previously held by Kim Company, and MRA II governs the assets of Pennsylvania Supply. The liquidation of Pennsylvania Supply and Kim Company were motivated solely by tax considerations and not by any desire to alter the management and control structures of the corporations. The parties sought to retain structures functionally resembling as; closely as possible the pre-existing corporate arrangement. The shares of the family members in the tenancies-in-common thus remained identical to their proportional stock ownership in the corporations. 'The MRA agreements also maintained the majority-based decision-making arrangement which existed in the corporations. Pursuant to Section I of the MRA agreements, MRA, Inc. was appointed manager of both tenancies-in-common. Mrs. Mumma ,and Lisa 1Robert M. Mumma died testate on April 12, 1986. J. A37040/93 - 3 are the officers and directors of MRA, Inc. On October, 19, 1986, Bob executed a power of attorney...pursuant to Section 14 of the MRA Agreements. The MR.A power cif attorney named the other tenants-in-common, including the Estate, Mrs. Mumma and Lisa, as Bob's attorneys in fact to execute on his behalf any deeds or other instruments necessary to carry out any of the purposes under the MRA agreements. The MRA power states on its face that it is coupled with an interest and is irrevocable. Similar powers of attorney were executed by the other family members. The Estate, Mrs. Mumma, Lisa and Bob are also among the shareholders of the Nine Ninety Nine, Inc. (999}, a privately held corporation. The Estate owns the largest interest in 999. Pennsy Supply, Inc. (Pennsy} is, in turn, a wholly owned subsidiary of 999. On June 30, 1987, the tenants-in-common under the MRA agreements held a meeting to discuss the proposed sale by Mrs. Mu~~mma and Lisa, as officers of MRA, Inc., of Lot 1-B located in Lemoyne, Pennsylvania. To facilitate the sale, and in order to avoid the necessity of filing the MR.A agreements, Mrs. Mumma and Lisa sought to procure from the other owners powers of attorney specifically referring to the Lemoyne property. Bob agreed to, and did, sign the new power of attorney. Bob subsequently demanded .the return of the later power, and Lisa complied with the request. The sale of the Lemoyne lot was completed in July of 1987. In order to effectuate the sale, Mrs. Mumma and Lisa usedi the still valid MR.A power of attorney executed by Bob in December, 1986, rather than the June, 1987 power. Following his agreement to sign the new power of attorney for use in the sale of the Lemoyne lot, Bob requested that he be given a right of first refusal to purchase Pennsy, should Mrs. Mumma and Lisa decide to sell it. Mrs . Mumma and Lisa stated that they might be willing to grant Bob a right of first refusal as to Pennsy, but that they would not consent if their financial and legal advisors did not approve the step. Mrs. Mumma and Lisa's attorneys counseled them that granting the first refusal right would nat be in their financial or legal interests because it would impair the value of the Estate by rendering Pennsy, one of the Estates largest assets, J. A37040/93 - 4 virtually impossible to sell for its full market value. In November, 1988, while Mrs. Mumma and Lisa were engaged in negotiations with a prospective buyer for a sale of stock of 999, and thus Pennsy, and real property owned by the MRA tenancies, Bob sent a letter to Barbara in which he claimed that he held a right of first refusal stemming from the June 30, 1987 meeting. On December 27, 1988, Mrs. Mumma and Lisa commenced this ,action in equity, upon information and belief: that Bob would attempt to disrupt a proposed sale of stock of 999 and real properties owned by the MRA tenancies. Mrs. Mumma and Lisa sought a declaratory judgment removing Bob's threatened obstruction of the transfer and declaring the MRA agreements and the MRA power of attorney signed by Bob on December 19, 1986, were valid and enforceable. Following three and one-half days of testimony, the trial court entered a lengthy opinion and order on March 24, 1992. Based upon its detailed findings of fact and conclusions of law, the trial court entered a declaratory judgment. The court held that the two MRA agreements signed by Bob on December 19, 1986, were binding upon him and did not grant him any right of first refusal as to any transfers by Mrs. Mumma and Lisa, as executrices, of the realty held by MRA tenants-in-common when there was approval by a majority in interest; ghat the MRA general power of attorney which Bob executed on December 19, 1986, was valid and irrevocable, and empowered Mrs. Mumma and Lisa to transfer properties held by the MRA tenancies-in-common, pursuant to Section 14 of the MR.A agreements; and that Bob was never granted an oral right of first refusal to purchase Pennsy Supply in June, 1987, in exchange for his promise to execute a power of ' J. A37040/93 - 5 attorney for Lot 1-B in Lemoyne. Bob filed a motion for post- trial relief, seeking reconsideration of the matter. Following the denial of his motion, Bob brought this appeal, which raises the following issues:2 1) Whether the two MRA agreements are binding and valid tenancy-in-common agreements when Bob did not sign them? 2) Whether the best evidence rule requires the executrices to produce ,the original tenancy-in-common documents or provide a satisfactory explanation for their absence? 3) Whether a common law right of first refusal is available to Bob as a tenant-in-common, and whether such right was waived unambiguously? 4) Whether, assuming that the tenancy-in-common agreements are enforceable, the agreement.. give each co- tenant a right of first refusal? 5) Whether the parties have revoked the tenancy-in- common agreements? 6) Whether the trial court misunderstood the interworkings of the tenancy relationship? 7) Whether the general power of attorney executed by Bob on December 19, 1986 empowers the executrices to transfer properties held by the tenancies-in-common? 8) Whether Bob was granted an oral right of first refusal in regard to the sale of Pennsy Supply? 9) Whether the law firm of Morgan, Lewis & Bockius should be disqualified from representing t:he executrices when the firm gave the family advice with regard to the MRA agreements while at the same time advising Bob in his personal estate planning? The scope of this court's review of a decree in equity rendered by the trial court is particularly limited. Volunteer Fire Co. of New Buffalo v Hilltop Oil Co 4:12 Pa. Super. 140, 2In his reply brief, Appellant raises additional issues of fact, which we find to be meritless in light of the trial court's findings of fact in its thorough opinion. J. A37040/93 - 6 145-46, 602 A.2d 1348, 1351 (1992). On appeal, the findings of ~" the trial judge must be accorded the same weight as a jury verdict, Linnet v Hitchcock, 324 Pa. Super,. 209, 212, 471 A.2d 537, 538 (1984), and these findings should not: be disturbed unless they are not supported by evidence in the record or are the result of an abuse of discretion. ,~.; Hostetter v. Hoover, 378 Pa. Super. 1, 6, 547 A.2d 1247, 1250 (1988) , aff ~, 523 Pa. 642, 565 A.2d 11 67 (1989). Furthermore: ..the party favored by the findings of the . trial judge is entitled to have the evidence viewed in the light most favorable to him; that is, all the evidence and the proper inferences favorable to him must be taken as true, and all unfavorable inferences rejected. Linnet v. Hitch-oqk, 324 Pa Super at 213 471 A d . . , .2 at 538, quoting Brenna v Nationwide Insurance Company, 294 Pa. Super. 564, 440 A.2d 609 (1982). In the instant case, nearly all of the issues relate to the factual findings of the trial court. A finding of fact will not be disturbed on appeal unless unsupported by competent evidence or predicated on errors of law. Eddystone Fare Co No 1 v Continental Insurance Companies, 284 Pa. Super. 260, 425 A.2d 803 (1981). Moreover, a final decree in equity "will not be disturbed unless it is unsupported by the evidence or demonstrably capricious." Sack v. Feinman, 489 Pa. 152, 166, 413 A.2d 1059, 1066 (1980). Having carefully reviewed the record, we find all of the trial court's factual conclusions to be supported by competent evidence. Appellant's testimony, which he cites in his brief as the basis for his argument that the trial court erred in making ~ .. J. A37040/93 - 7 its findings of fact, was heard by the trial court and was not found to be as credible as that of Appellees and their witnesses. The trial court, in its well-reasoned opinion, has cited the portions of the record which support its factual findings, and we hold that such evidence provides a credible basis for the court's verdict. It is not the function of this court to substitute its judgment or evaluation of evidence where the2-e is some credible evidence on which to base the verdict. Eldridge v. M lcher, 226 Pa. Super. 381, 313 A.2d 750 (1973). Accordingly, we affirm the factual issues raised by Appellant on the basis of the trial court's excellent opinion. The sole legal issue raised by Appellant concerns the application of the best evidence rule to the MRA agreements. The trial court found that the Appellees had made a satisfactory explanation for the failure to produce the original agreement. (See 2 McCormick on Evidence §237, at 76 (1992),; 1 Packel & Poulin §1001.3, at 598-99 (1987): Destruction or loss is a satisfactory explanation for failure to produce an original writing.) We find no error of law in the trial court's reasoning, nor do we find that the trial court abused its discretion in ,its ruling on this issue. Therefore, we affirm this issue on the basis of the court's reasoning in its opinion. Orders affirmed. Fr FILESd'Iients Mumma 5844.1 (estate) 8747 (Kim)~5844.LMumma Estate\5644-1.396.cettservice CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent of Martson Law Offices, hereby certify that a copy of the foregoing Second Petition for Judicial Notice was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Robert M. Mumma, II Box F Grantham, PA 17027 Mr. Robert M. Mumma, II 6880 S.E. Harbor Circle Stuart, FL 34996-1968 Mr. Robert M. Mumma, II 840 Market Street, Suite 164 Lemoyne, PA 17043 Ralph A. Jacobs, Esquire JACOBS & SINGER, LLC 1515 Market Street, Suite 705 Philadelphia, PA 19102 (Attorney for Barbara Mann Mumma) Brady L. Green, Esquire MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 (Attorney for Estate and Executrixes) Joseph D. Buckley, Esquire 1237 Holly Pike Carlisle, PA 17013 (Court Appointed Auditor) Ms. Linda M. Mumma 212 North Duke Street Durham, NC 27701 MARTSON LAW OFFICES By ricia D. Eckenroad 10 East High Street Carlisle, PA 17013 Dated: December 24, 2008 (717) 243-3341