Loading...
HomeMy WebLinkAbout04-06-09George B. Faller, Jr., Esquire I.D. No. 49813 No V. Otto, III, Esquire ~ ~ I.D. No. 27763 c Q ~° _~3 -r ~ ~?~ ~ Jennifer L. Spears, Esquire fir; ~ -~ x~ -v ;-:., < ~ ==~-? ~==> I.D. No. 87445 ~ ~ m ~ :~-~ 1:-:~:.~ MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER `r~~~~'-.-. °' ~ =" MARTSON LAW OFFICES c ~~ ~ -v `- `~. 10 East High Street ~ a~ ~ ~-~ ,- Carlisle, PA 17013 ~ ~ t':' ~~ (717) 243-3341 ~ ~ Attorneys for Barbara McK. Mumma and Lisa M. Morgan IN THE COURT OF COMMON PLEAS IN RE: OF CUMBERLAND COUNTY, PENNSYLVANIA Estate of Robert M. Mumma, NO. 21-86-398 Deceased. ORPHANS' COURT DIVISION ANSWER OF BARBARA MCK. MOMMA AND LISA M. MORGAN TO THE EMERGENCY MOTION OF ROBERT M. MOMMA, II TO COMPEL COMPLIANCE WITH COURT ORDER and MOTION FOR DISCLOSURE OF WAREHOUSED ESTATE FILES AND RECORDS and MOTION FOR SANCTIONS Barbara McK. Mumma and Lisa M. Morgan respond as follows to the Emergency Motion of Robert M. Mumma, II to Compel Compliance with Court Order and Motion for Disclosure of Warehoused Estate Files and Records and Motion for Sanctions: 1. Admitted. By way of further response, Mr. Mumma, II is, upon information and belief, being assisted by James G. Gault, Esquire, though Mr. Gault has not entered his appearance of record on behalf of Mr. Mumma, II. 2. Denied. To the contrary, a disclaimer was filed in this matter on or about January 12, 1987, whereby Mr. Mumma, II disclaimed any interest under the will of Robert M. Mumma. No court has issued a final ruling on the effect of the disclaimer. 3. Denied as stated. The allegations of this paragraph constitute legal conclusions, to which no response is required. By way of further response, Barbara Mumma and Linda Mumma are contingent remaindermen of the trusts established under the will of Robert M. Mumma. 4.-5. Admitted. 6. Admitted in part, denied in part. It is admitted that Mrs. Mumma testified in a deposition in this matter on January 24, 2007. That testimony is in writing and speaks for itself, and all characterizations thereof are denied. By way of further response, Mr. Mumma, II's deposition question of Mrs. Mumma was consistently vague and imprecise about the identity of the "records" being referenced. See also response to paragraph 17 below. 7. Admitted in part, denied in part. It is admitted that Mrs. Morgan testified in a deposition in this matter on January 25, 2007. That testimony is in writing and speaks for itself, and all characterizations thereof are denied. By way of further response, Mr. Mumma, II's deposition question of Mrs. Morgan was consistently vague and imprecise about the identity of the "records" being referenced. See also response to paragraph 17 below. 8. Admitted in part, denied in part. It is admitted that counsel for Mrs. Mumma and Mrs. Morgan attended apre-hearing conference conducted by the Auditor on October 29, 2008. That conference was recorded, and the transcript of it is in writing and speaks for itself, and all characterizations thereof are denied. See also response to paragraph 17 below. 2 9. Admitted. By way of further response, the Notice is a writing which speaks for itself. 10. Admitted. By way of further response, the letter is a writing which speaks for itself. 11. Admitted. By way of further response, the letter is a writing which speaks for itself. 12. Admitted that a portion of the February 26, 2009 Order of Court is accurately represented, however the full Order is a writing which speaks for itself. 13. Admitted. By way of further response, Mr. Gault was advised that Mrs. Mumma and Mrs. Morgan were determining whether there existed documents whose production was covered by the Court's February 26, 2009 Order. 14.-15. Admitted. 16. Admitted. By way of further response, counsel's March 23, 2009 email read in full as follows: I am writing in response to various discussions and communications we have had regarding further production of documents by the Executrices/Trustees. First, with respect to the provision in the Court's February 26 Order, we are not aware of any warehoused records created as part of or pertaining to the creation or administration of the estate or the trusts. Second, we will be producing a relatively small number of additional records. These will include primarily: 1. Records pertaining to family-owned businesses as to which records previously were produced, for periods during which the Estate and/or Trusts owned stock in those corporations or operations; 2. Documents created since the prior production of documents by the Executrices/Trustees; 3 3. Additional documents regarding the historical administration of the Estate and/or the Trusts, most of which we believe to have been previously produced but which we will produce in order to be certain; 4. Corporate minutes, by-laws, stock ledgers or other official corporate records that may not previously have been produced; and 5. Additional information regarding the horses owned by Mr. Mumma at the time of his death. Given the timing and the relatively small number of documents (a few boxes) we plan to have the documents copied and delivered to both of you at your offices (unless you prefer another location of delivery) on Wednesday or Thursday. The originals of these documents will be available for inspection thereafter should you wish to review them. 17. Admitted in part, denied in part. It is admitted that, at various times, records created as part of or pertaining to the creation or administration of the estate of Robert M. Mumma and the trusts created under his will have been stored in various locations in Pennsylvania and Florida. However, in connection with discovery requests in the above-captioned matter and other litigations over the course of the past 20 years, Mrs. Mumma, Mrs. Morgan and their counsel have reviewed documents at their residences, at various storage locations and in counsel's files to ensure complete production of documents in this and other matters. Numerous documents have been gathered for review and production as part of this effort. Among other sources, a large number of such documents were removed from a facility located on Mumma Road in Wormleysburg, Pennsylvania, resulting, along with documents from the files of Mrs. Mumma and Mrs. Morgan's counsel, resulted in the production in Philadelphia in 2005-2006 of more than 90 boxes of documents of non-privileged documents. Mr. Mumma, II and others acting on his behalf reviewed those documents on several occasions, and voluminous documents were copied and delivered to them in connection with that review. 4 In addition, Hadley & Company, which itself and through a predecessor have been the accountants to the Estate, the Trusts, and numerous family businesses since 1986, made available for review, at Mrs. Mumma and Mrs. Morgan's request, its files on the Estate, the Trusts, Mumma Realty Associates I, Mumma Realty Associates II, D-E Distribution Corporation and G-A-T Distribution Corp. at its office in Buffalo, New York. Mr. Mumma, II was provided with copies of all requested documents from among those records. The production referenced in counsel's March 23, 2009 email resulted from a further review of the records previously removed from the Wormleysburg space in connection with the prior production, along with other records created and/or located subsequent to that production. The referenced documents, which were delivered to Mr. Mumma, II on March 26, 2009 as described in the March 23, 2009 email. In addition, on March 26, counsel for Mrs. Mumma and Mrs. Morgan sent an email to Mr. Mumma, II stating, in part, as follows: This is to advise that we have additional documents for production in the above- referenced matter. They consist of five boxes of files pertaining to the operation and management of the properties and assets of Mumma Realty Associates I, Mumma Realty Associates II, D-E Distribution Corp., G-A-T Distribution Corp., the Estate and the Trusts. The files relate primarily, though not exclusively, to real estate and tax matters. They contain overlap with documents and information previously provided by Mrs. Mumma, Mrs. Morgan, their counsel and/or Hadley & Company. However, the documents also include correspondence and other documents on various matters relating to the above- listed entities. In light of the timing, we can provide each of you with agates-numbered set of the documents (the likely timing would be early next week), or first make them available for inspection. The documents presently are in our Philadelphia office. We also could make them available at a location in central Pennsylvania. If we provide you with copies, the originals would be available thereafter for review. Please advise as to whether you would like us to send you a complete set of the documents. 5 The referenced documents were located as part of the effort to ensure that non- privileged documents relating to the Estate and Trust, Mumma Realty Associates I, Mumma Realty Associates II, D-E Distribution Corp. and G-A-T Distribution Corp. had been produced. To date, Mr. Mumma, II has neither requested a set of the documents nor made any effort to review them. At the heart of Mr. Mumma, II's motion is his apparent belief that literally any paper or document relating in any way to any business, asset or activity in which Mr. Mumma, Sr. ever engaged -including files relating to entities that ceased to exist before his death, assets sold before his death, and all personal property, correspondence or other papers -falls within both Mr. Mumma, II's alleged rights to access and the term "estate files and records" in the Court's February 26, 2009 Order. Mrs. Mumma, Mrs. Morgan and their counsel did not understand that to have been the scope of the Order, based either on the law or on statements made by the Auditor at the October 29, 2008 conference or by his predecessor. Indeed, Mr. Mumma, II's apparent claim, in this proceeding regarding the accounts filed by Mrs. Mumma and Mrs. Morgan, that he is entitled, for example, to every piece of paper relating to every business in which Mr. Mumma, Sr. ever held an interest or played arole -whether or not Mrs. Mumma and Mrs. Morgan had any involvement with that business in their capacities as Executrices or Trustees - is inconsistent with the terms of the February 26, 2009 Order directing that Mrs. Mumma and Mrs. Morgan produce only "all corporate minutes, by- laws, stock ledgers, and any other official corporate records generated by and held in the custody of the corporate secretary for any of the corporations over which the Estate and/or Trust has control or which the Estate and/or Trust has custody." This provision 6 clearly excludes routine operational or other documents routinely maintained by corporations but not of the type typically maintained by a corporate secretary in that capacity. Such files are, however, neither relevant nor within the scope of the February 26, 2009 Order. Mrs. Mumma and Mrs. Morgan admit that there are personal files and items that belonged to Mr. Mumma, Sr. prior to his death that are stored in various locations. These include personal papers and effects that have played no role in the creation or administration of the estate or the trusts (other than as disclosed in inventories, tax returns, etc. previously disclosed), and they were left to Mrs. Mumma under Mr. Mumma, Sr.'s will. The documents ,along with various documents relating to the historical operations of various business and assets, in one or more storage facilities to which one or both of them has access. There also are documents relating to the operations of businesses prior to Mr. Mumma, Sr.'s death. Such documents that have been used or consulted in the creation or administration of the estate or the trusts have been produced previously. Many others, however, are of only historical relevance, and they are utterly irrelevant to an assessment of the conduct of Mrs. Mumma and Mrs. Morgan in their capacities as fiduciaries under Mr. Mumma, Sr.'s will. It is also noteworthy that Mr. Mumma, II, as he announced at the October 29, 2008 conference with the Auditor, is pursuing an action in federal court - Robert M. Mumma, 11 v. Bobali Corporation et al., No. 1:08-cv-1965 (M.D. Pa.) - in which he seeks access, based on his claimed status as an officer, director and shareholder of Pennsylvania Supply Company, Kim Company and Bobali Corporation, 7 to books and records of those corporations. Judge Sylvia Rambo held an evidentiary hearing with respect to Mr. Mumma, II's claims in that action on March 9, 2009. 18. Admitted. By way of further response, see response to paragraph 17 above. 19 through 23, inclusive. Denied. The allegations of these paragraphs constitute requests for relief to which no response is required. To the extent that a further response is required, the allegations of these paragraphs are denied. 24. Admitted in part, denied in part. Mrs. Mumma and Mrs. Morgan admit that Mr. Mumma, II did not seek concurrence of counsel prior to filing the instant motion. Mrs. Mumma and Mrs. Morgan deny the remaining allegations of this paragraph. 25. Admitted. Judge Oler has previously decided motions and petitions filed in these proceedings. WHEREFORE, Mrs. Mumma and Mrs. Morgan respectfully request that Mr. Mumma, II,'s Emergency Motion to Compel Compliance with Court Order and Motion for Disclosure of Warehoused Estate Files and Records and Motion for Sanctions be denied. Date: April 6, 2009 MART N LAW OFFICES By Ge r B. Faller, Jr., Esquire I.D. No. 49813 No V. Otto, III, Esquire I.D. No. 27763 Jennifer L. Spears, Esquire I.D. No. 87445 Ten East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Barbara McK. Mumma 8 Lisa M. Morgan 8 CERTIFICATE OF SERVICE I, Melissa A. Scholly, an authorized agent of Martson Law Offices, hereby certify that a copy of the foregoing Answer of Barbara McK. Mumma and Lisa M. Morgan to the Emergency Motion of Robert M. Mumma, II to Compel Compliance with Court Order and Motion for Disclosure of Warehoused Estate Files and Records and Motion for Sanctions 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) 9 Ms. Linda M. Mumma 212 North Duke Street Durham, NC 27701 MARTSON LAW OFFICES By ~ ~, Melissa A. Scholly 10 East High Street Carlisle, PA 17013 (717) 243-3341 Dated: April 6, 2009 10