HomeMy WebLinkAbout12-11-09George B. Faller, Jr., Esquire - '"`
I.D. No. 49813 ~ ~ -- ~~ ~ •-~
No V. Otto, III, Esquire
I.D. No. 27763 ~~~~ ~`~ ~ 1 Q t • ~2
Jennifer L. Spears, Esquire
LD. No. 87445 ~~=;fi; ~;'=
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MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER (~~ ;6~N " ; ~ T<,T
MARTSON LAW OFFICES
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10 East High Street
Carlisle, PA 17013
(717) 243-3341
Attorneys for Barbara McK. Mumma and Lisa M. Morgan
IN THE COURT OF COMMON PLEAS OF
IN RE: CUMBERLAND COUNTY, PENNSYLVANIA
Estate of Robert M. Mumma,
NO. 21-86-398
Deceased. ORPHANS' COURT DIVISION
DESIGNATIONS OF BARBARA MCK. MUMMA AND
LI5A M. MORGAN OF TESTIMONY TO BE READ AT HEARING
Barbara McK. Mumma and Lisa M. Morgan hereby designate the following testimony to
be read as part of their affirmative case in the hearing before the Auditor with respect to the
objections of Robert M. Mumma, II and Barbara Mann Mumma to accounts with respect to the
Estate of Robert M. Mumma, Deceased and the Trusts established under his will:
A. Testimony of Robert M. Mumma, II
Mrs. Mumma and Mrs. Morgan designate the following testimony to be read pursuant to
Pa.R.E. 803(25) as an admission of a party opponent:
Mumma v. Mumma, No. 66 Equity 1988, Transcript of Proceedings, (C.P. Cumberland
Mar. 10, 1991) (excerpts attached as Exhibit "A"):
From
Page 677 Line 9
Page 677 Line 16
Page 679 Line 18
To
Page 677 Line 11
Page 677 Line 21
Page 679 Line 24
Mumma v. Mumma, No. 66 Equity 1988, Transcript of Proceedings, (C.P. Cumberland
Mar. 6, 1991) (excerpts attached as Exhibit "B"):
From To
Page 19 Line 14 Page 19 Line 25
Page 20 Line 1 Page 20 Line 19
B. Testimony of Ronald Nye
Mrs. Mumma and Mrs. Morgan designate the following testimony to be read pursuant to
Pa.R.E. 804(b)(1), in that Mr. Nye is, as testified to in this proceeding by Harry G. Lake,
deceased and therefore unavailable:
In re Estate of Mumma, No. 21-86-398, Transcript of Proceedings (O.C. Cumberland
May 11, 1992 (excerpts attached as Exhibit "C"):
From
Page 24, Line 6
Page 26, Line 4
Page 26, Line 16
Dated: December 11, 2009
To
Page 25, Line 9
Page 26, Line 11
Page 28, Line 6
Georg B aller, Jr., Esquire
LD. No. 49813
No V: Otto,. III, Esquire
I.D. No. 27763
Jennifer L. Spears, Esquire
I.D. No. 87445
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
717-243-3341
Brady L. Green, Esquire
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103
215-963-5079
Attorneys for Barbara McK. Mumma and
Lisa M. Morgan
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BARBARA McK. MUMilA and ~ .
LISA M. MORGAN, individually
and as executrices of the
Estate of Robert M. Mumma,
deceased, and LINDA M. ROTH,
Plaintiffs .
V.
ROBERT M. MUMMA, II, and
BARBARA M. McCI,URE,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
66 EQUITY 1988
IN RE: NON-JURY TRIAL
VOLUME IV of IV
Proceedings held before the Honorable
HAROLD E. SHEELY, P.J.,
Cumberland County Courthouse, Carlisle, Pennsylvania,
on Monday, March 13, 1991, at 9:40 a.m.
in Courtroom No. 1.
TREE CC?PY F y~~° ~:1 ~~~C;~~
1q Test~mcn• .;h^~cc` i ;,: r<: .; .:a ~~y hand
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and the sd n~.',~ i .", , ,:,t ~. ', ~-
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APPEARANCES : ~~ Prot;onotary
THOMAS M. KITTREDGE, ESQUIRE
WILLIAM F. MARTSON, ESQUIRE
For Plaintiffs Barbara McK. Mumma and Lisa M. Morgan
JOHN HARDIN YOUNG, ESQUIRE
For Plaintiff Linda M. Roth
JON A. BAUGHMAN, ESQUIRE
CHARLES E. SHIELDS, III, ESQUIRE
For Defendant Robert M. Mumma, II
RICHARD W. STEVENSON; ESQUIRE
For Defendant Barbara M. McClure
/;~( ~~
Exhibit "A"
1 A Yes.
2 MR. BAUGHMAN: I'm going to ask the reporter
3 to mark this document, which I've shown to Mr. Kittredge, as
4 R-157.
5 (Whereupon,
6 Respondent's Exhibit No. 157
7 was marked for identification.)
8 BY MR. BAUGHMAN:
9 Q I show you what's been marked for
10 identification as R-157,. Mr. Mumma, and ask you what that
11 is?
12 A Karl Felmeden and I had a meeting at
13 Pennsylvania Supply --
14 MR. KITTREDGE: If Your Honor please, you
15 were asked, Mr. Mumma, to state what it is.
16 THE WITNESS: This is the result of a meeting
17 between Mr. Felmeden and myself at 1001 Paxton Street.
18 MR. KITTREDGE: It was written by Mr.
19 Felmeden?
20 THE WITNESS: Yes, it's handwritten by Mr.
21 Felmeden.
22 MR. KITTREDGE: I'm going to object to any
23 testimony on this document. It's rank hearsay. It's dated
24 1982, long before anything involving this case. It has no
25 relevance whatever.
677
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1 doesn't get around the hearsay rule.
2 MR. BAUGHMAN: Mr. Mumma has personal
3 knowledge of what is contained in this document.
4 THE COURT: Ga ahead. What time was this?
5 What era?
6 MR. BAUGHMAN: 1982, Your Honor.
7 THE COURT: 1982?
8 MR. BAUGHMAN: Yes, sir.
9 MR. KITTREDGE: Yes, sir.
10 THE COURT: I guess the document will speak
11 for itself whatever it is so let's just -- he identified
12 what it was, so I don't think we need to get into it any
13 further.
14 MR. BAUGHMAN: Your Honor, I would only want
15 to establish the circumstances under which it was prepared.
16 THE COURT: All right. Go ahead.
17 BY MR. BAUGHMAN:
1S Q Would you tell us, Mr. Mumma, what were the
19 circumstances under which R-157 was prepared?
20 A Mr. Felmeden was putting together a deal
21 where I could buy Pennsy supply, Inc. And this was the
22 method that he wanted to use to structure the deal; and this
23 was the price, $2 million that he came up with and the
24 financing that he had structured for it.
25 MR. BAUGHMAN: Thank you. I'm going to ask
679
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F
S.
BARBARA McK. MUMMA and ,
LISA M. MORGAN~j individually
and as esecutrixes of the
estate of Robert M. Mumma, .
deceased, and LINDA M. ROTH,
Plaintiffs ,
V. ,
ROBERT M. MUMMA, II, and ,
BARBARA M. McCLURE, ,
Defendants ,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - EQUITY
66 EQUITY 1988
IN RE: DIRECT TESTIMONY OF ROBERT M. MUMMA II
Proceedings held before the Honorable
HAROLD E. SHEELY, P.J.,
Cumberland County Courthouse, Carlisle, Pennsylvania,
on March 6, 1991, in Courtroom No. 1.
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APPEA LACES:
LLIAM F. MARTSON, ESQUIRE
THOMAS M. KITTREDGE, ESQUIRE
For Plaintiffs Barbara McK. MunMa and Lisa M. Morgan
.~'
JOHN HARDIN YOUNG, ESQUIRE
For Plaintiff Linda M. Roth
ANTHONY VALE, ESQUIRE
JON A. BAUGHMAN, ESQUIRE
CHARLES E. SHIELDS, III, ESQUIRE
For Defendant Robert M. Mumma, II
RICHARD 6J. STEVENSON, ESQUIRE
For Defendant Barbara M. McClure
In Testisrcny w~ierec `, i hr~re ~.,~nto set my hand
and the seal cf said ~~~u;-i~ ai Carls':e, ,~a.
This .........~~.... day c~....1..?~~~~......., ..~Y_ 3
.........:~~..~......~J.~..~..r
t~rnthanotary
Exhibit "B"
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is
1 the document that you got the tenants-in-common -- you said
2 it wasn't a copy. I take it it was on bond paper rather
3 than on --
4 A It was on bond paper, and it was original
5 typewritten or laser printer or whatever it is; but this was
6 the real thing.
~ Q What did you do with it when you left the
8 meeting?
9 A It's my recollection I had all these notes of
10 things that were going to be changed on there, that Art and
11 I had agreed would be changed. I gave it and the power of
12 attorney, which was to be delivered to Art to Skinner to
13 take back to Art.
14 Q Let's go forward from there to discuss a
15 meeting that's been discussed here in testimony, and that
16 would be a March meeting with Mr. Hadley at your mother's
17 house. And your sister Lisa was also there?
18 A That's correct.
19 Q Do you recall -- in fact, did such a meeting
20 occur?
21 A Such a meeting occurred, and Hadley gave me
22 that list of documents that he has a receipt for; and he
23 gave r.:e the depreciation sheets, and I had that information.
24 Q Okay. And did you arrive late at the
25 meeting?
19
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1 A I arrived late at the meeting. I don't know
2 if it was two hours, but I got tied up at a job conference
3 on ane of the jobs we did; and I left there and went to the
4 meeting.
5 Q What happened at the meeting?
6 A I walked into the meeting. We talked. And
7 the question was, I was to make an offer for Pennsy Supply.
8 So I told George that it was my feeling that Pennsy Supply
9 was worth $5,000,000.00, that Pennsy Supply with the
l0 aggregates was worth $7,000,000.00. And Kim, I guess I
11 started with the $7,000,000.00 figure; and they said they
12 didn't want to sell the aggregates as part of that, and that
13 they would enter into, you know, a royalty agreements or
14 whatever; but at this time, they didn't want to sell the
15 aggregate properties. I said Pennsy Supply was worth
16 $5,000,000.00 in that case. And I was drawing on the
17 negotiations I had had with Mr. Felmeden where he said it
18 was worth $2,000,000.00 in 1982, '83, that same group of
19 assets.
20 And the subject came up about Elco, and Kim
21 said that Elco was not part of the deal. She Baas not going
22 to sell Elco, that my father had told her that never ever
23 sell Elco. And I said, Elco is a subsidiary to Pennsy
24 Supply. If you buy Pennsy Supply, you buy Elco because it's
25 a wholly-owned subsidiary.
20
IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF
ROBERT M. MUMMA, late of Ct3MBERLAND COUNTY, PENNSYLVANIA
Cumberland County, ORPHANS' COURT DIVISION
Pennsylvania
NO. 21-86-398
TN RE• TRANSCR~ OF_~ROCEEDINGS .
Proceedings held before the Honorable HAROLD E.
SHEELY, P.J., Cumberland County Courthouse, Carlisle,
Pennsylvania, on Monday, May 11, 1992, at 9:30 a.m. in
Courtroom Number One.
A TRUE COPY F90FA RECCRD
In Testimony wherof, !hereunto
set my hand and the sea!
Of said. Court at Carlisle, PA
'trf,is.~dday or , 20 G9
Clerk d~ file Orphans Court
Cumb~;rl~,nd Co~snty
APPEARANCES:
MARL J. SONNENFELD, Esquire
For the Respondent
WILLIAM C. COSTOPOULOS, Esquire
For the Petitioners
CHARLES 8. SHIELDS, III, Esquire
For Petitioners
1634
Exhibit "C"
a
1 Harrisburg.
2 MR. SONNENFELD: Thank you, Mr. Eshelman. I
3 have nothing further of this witness, Your Honor.
4 THE COURT: Cross-examine.
5 MR. COSTOPOULOS: No questions, Your Honor.
6 THE COURT: I have none. Thank you.
7 MR. SONNENFELD: Your Honor, I have copies of
8 these exhibits, if you would care to have them.
9 THE COURT: I don't need copies. I'll have
to the originals.
11 MR. SONNENFELD: I would move these exhibits
12 at this time.
13 THE COURT: They're admitted.
1a {whereupon, Respondents' Exhibits 1 and 2
15 were admitted into evidence.)
16 MR. SONNENFELD: Your Honor, I next call Mr.
17 Nye.
18 Whereupon,
19 RONALD E. NYE
20 having been duly sworn, testified as follows:
21 DIRECT EXAMINATION
22 BY MR. SONNENFELD:
23 Q Mr. Nye, you're retired; is that correct,
24 sir?
25 A Yes, heat's correct.
1656 23
1 Q And by whom were you employed prior?
2 THE COURT: I don't believe he gave us his
3 full name.
4 MR. SONNENFELD: Oh, I'm sorry, Your Honor.
5 BY MR. SONNENFELD:
6 Q Can you tell us your full name?
7 A Ronald E. Nye.
8 THE COURT: Can you spell that?
9 THE WITNESS: N-y-e.
10 BY MR. 5ONNENFELD:
11 Q Can you tell us your address, Mr. Nye?
12 A 707 Alison Avenue, Mechanicsburg,
13 Pennsylvania.
14 Q Thank you, sir. Is that correct that your
15 retired, Mr. Nye?
16 A That's correct.
17 Q By whom were you employed at the time of your
18 retirement?
19 A Pennsy Supply, Incorporated.
20 Q When did you retire from Pennsy Supply,
21 Incorporated?
22 A The end of December, 1991.
23 Q For how long were you employed by Pennsy
24 supply?
25 A Forty years.
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Q And what was your position at the time of
your retirement in 1991?
A Vice president of sales for aggregates
crushed stone, blacktop.
Q What were your duties and responsibilities?
A Duties were to be responsible for sales of
those materials, for filling out and taking care of the
bidding process to various municipalities and the state and
according prices to the contractors who requested them.
Q Now, you heard Mr. Eshelman's testimony in
court this morning?
A Yes.
Q And rather than have you repeat that do you
agree with what he said and adopt that as your testimony?
A Yes.
Q Now, at sometime -- up to sometime is that
correct that Pennsy Supply sold materials to Adams County
Asphalt?
A That's correct.
Q And have you reviewed the records of Pennsy
Supply and determined when Adams County Asphalt stopped
buying materials from Pennsy Supply?
A Yes, I did. We stopped selling them
materials sometime in the latter part of 1988.
Q And would it be correct to say that prior to
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that time Adams County Asphalt was a contractor buying its
materials from Penney Supply?
A That~s correct.
Q Now, have you determined when Mr. Mumma, II,
applied for a quarrying permit for the Fiddler's Elbow
location?
A Z recall, I believe it was sometime in June
of 1988 when he applied for a permit.
Q And when did he apply for a permit to operate
a blacktop plant at Fiddlers Elbow?
A I believe that was in September of '88.
Q And when did McDermitt, Inc., get a permit to
manufacture concrete at Fiddler's Elbow?
A I believe that was sometime in November of
1989.
Q And to the best of your recollection, when
did Mr. Mumma, II, first begin publicly bidding on blacktop
for state materials, contracts?
A Far state materials, contracts, he started
bidding on those materials against Penney Supply in December
of 1989 and January of 1990.
Q And when did he begin the bidding on crushed
stone for such contracts?
A For state contracts?
Q Yes, sir.
165
26
1 A Okay. I'm sorry. The first one was in
2 December of 1989. I believe that was a blacktop, and I
3 believe the crushed stone was in January of 1990.
4 Q And when did Mr. Mumma, II, begin bidding to
5 supply materials to municipalities?
g A He began bidding against us on municipality
7 bids in the early spring, which normally doesn't start until
8 sometime around March of 1990.
g Q And was Mr. Mumma still bidding against
10 Pennsy Supply for those materials -- for those kinds oP jobs
11 as of tha time of your retirement in December of 1991?
12 A Yes.
13 Q And do you recall any specific jobs where Mr.
14 Mumma was bidding against Pennsy Supply?
ig A Well, I remembex one specific job when he was
16 aggressively bidding against us. He was bidding as a
17 contractor for an overlay job in a Silver Springs Company
18 and Pennsy Supply was bidding against them.
ig And he came in and hit that one pretty hard
20 and took it from Pennsy Supply. And it was kind of
21 disgusting because it was, you know -- he's about fifteen or
22 twenty miles on the other side of :the river from us and
23 we're sitting right in the Silver Springs Township. So I
24 was a little disappointed with that.
25 Q When you say he was aggressively bidding,
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what do you mean by that?
A Well, if I recall he was probably in excess
of ten percent under us.
Q And are there other jobs where that has
occurred as well?
A Yes.
MR. SONNENFELD: Your Honor, I have nothing
further of Mr. Nye.
THE COURT: Cross-examine.
MR. COSTOPOUL05: No questions, Your Honor
THE COURT: I have none. Thank you.
MR. SONNENFEI.D: Your Honor, might we at this
time excuse Mr. Eshelman and Mr. Nye?
MR. COSTOPOULOS: No objections.
THE COURT: They may be excused.
MR. SONNENFELD: Your Honor, I'd just like to
read very briefly a few admissions into the Record. This
won't take vezy long.
THE COURT: Is this admissions now from the
rule?
MR. SONNENFELD: These are admissions that
pertain to Mr. Mumma's competition with Penney Supply.
These will be very brief, Your Honor.
THE COURT: Go ahead
MR. SONNENFELD: Thank you, Your Honor.
1661
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CERTIFICATE OF SERVICE
I, Melissa A. Scholly, an authorized agent of Martson Law Offices, hereby certify that a
copy of the foregoing Designations of Barbara McK. Mumma and Lisa M. Morgan of Testimony
to be Read at Hearing was served this date by depositing same in the Post Office at Carlisle, PA,
first class mail, postage prepaid, and by e-mail addressed as follows:
Mr. Robert M. Mumma, II
Box F
Grantham, PA 17027
Mr. Robert M. Mumma, II
840 Market Street, Suite 164
Lemoyne, PA 17043
Mr. Robert M. Mumma, II
6880 S.E. Harbor Circle
Stuart, FL 34996-1968
Brady L. Green, Esquire
MORGAN, LEWIS & BOCKIUS LLP
1701 Market Street
Philadelphia, PA 19103-2921
(Attorney for Estate and Executrixes)
Ms. Linda M. Mumma
512 Creekview Drive
Mechanicsburg, PA 17055
Pro Se
Ms. Barbara Mann Mumma
541 Bridgeview Drive
Lemoyne, PA 17043
Pro Se
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
(Court Appointed Auditor)
;,
MARTSON LAW OFFICES
Melissa A. Scholly
10 East High Street
Carlisle, PA 17013
Dated: December 11, 2009 (717) 243-3341
F:'' FILES\Clients\5844 Mumma Estate\5844.1.Mumma Estate\5844.1.398.Designations of Prior Testimony.doc