HomeMy WebLinkAbout10-08-10IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
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IN RE ESTATE OF ORPHANS' COURT D N ° ~~? ~'
ROBERT M. MUMMA ~~,, ~ n
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POST-HEARING RESPONSE OF BARBARA MCK. MUMMA (DEC~~-$ED) ~ `~`'
AND LISA M. MORGAN AS EXECUTRICES OF AND TRUSTEES t.
On behalf of Bazbaza McK. Mumma ("Mrs. Mumma"), now decea~ed,l and
herself as executors of and trustees under the will of Robert M. Mumma ("Mr. ~1~[umma,
Sr."), Lisa M. Morgan (Mrs. Morgan") respectfully submits this response to the
objections filed by Robert M. Mumma, II ("Mr. Mumma, II") and Bazbara M.I11WIumma
("Babs Mumma") to accounts filed by Mrs. Mumma and Mrs. Morgan. The i~ollowing
responses reference the portions of Mrs. Mumma and the Post-Hearing Brie ~("Post-
Hearing BrieF') that address the subject matter of each objection.
Objection 1 (Mr. Mumma, II's Objection 1~:
Whether the Executrices/Trustees have grossly undervalued the assets of the Estajte.
Response:
Evidence at the hearing on the valuation issue focused largely on the purported Failure of
Mrs. Mumma and Mrs. Morgan to value properly assets used to fund the Maritall'i Trust in
December 1987. The process which resulted in those valuations, and the evid$nce and
Mrs. Mumma died on July 17, 2010.
~,
azguments presented by Objectors on these issues aze addressed in Section VI of the Post-
Hearing Brief.
Obiection 2 (Mr. Mumma, II's Objection 2,j:
Whether the Executrices/Trustees have disproportionately allocated the assets: of the
Estate into the Marital Trust.
Response:
The azguments .and evidence presented on this issue aze addressed in Section `VI of the
Post-Hearing Brief.
Obiection 3 (Mr. Mumma, II's Objection 3:
Whether the Executrices/Trustees have incurred unnecessary capital g~injs taxes,
fiduciary income taxes, or inheritance taxes.
Response:
Objectors have not presented any fact or expert testimony or other evidence a~ !to any
specific instance in or asset as to which any "unnecessary capital gains taxes, ~$uciary
income taxes or inheritance taxes" were incurred or paid. Nor have they prese#~ted any
evidence as to the amount of any taxes "unnecessarily" paid or incurred. Thhe only
evidence or azgument relating to tax matters related to the QTIP election, which is
discussed in Section VII.A.3 of the Post-Hearing Brief.
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Objection 4 (Mr Mumma, II Objection 41:
Whether the Executrix Bazbaza McK. Mumma is entitled to selectively withdraw
individual assets /assets-in-kind from the Marital Trust as opposed to rece~ving the
designated dollaz amount or percentage.
Response:
Objectors have offered no evidence or testimony to support the notion that there was
anything improper in the decision of Mrs. Mumma and Mrs. Morgan to satisfy Mrs.
Mumma's 5% withdrawal elections with assets in kind rather than in cash. R$ther, the
only issue as to which evidence and testimony has been presented goes to the !,value of
certain assets transferred to the Marital Trust at the time of its funding in Deceanl~r 1987,
addressed in Section VII of the Post-Hearing Brief. The evidence relating', to Mrs.
Mumma's exercise of her withdrawal right is summarized in Section V.
Obiection 5 (Mr. Mumma, II's Objection 51:
Whether the Executrices/Trustees failed to properly account for the stock distrib~u~ions to
Bazbaza McK. Mumma.
Response:
Objectors have not identified any instance in which there has been a "failure to properly
account" for stock distributions to Mrs. Mumma. Nor have they presented any $vidence
or testimony that there was any deficiency or impropriety in the manner in which Mrs.
Mumma and Mrs. Morgan have accounted for any distributions. To the extent this
Objection relates to the payment of stock to Mrs. Mumma in satisfactipn'~ of her
entitlement to statutory interest, the issue is addressed in Section VILA.2 of ~~ Post-
Hearing Brief. To the extent it relates to stock used to satisfy Mrs. Mumri~a's 5%
withdrawals from the Marital Trust, the issue is addressed in Section V.
3
Obiection 6 (Mr. Mumma, II's Objection 6):
Whether the Executrices/Trustees failed to properly account for and/or distribute estate
income to Bazbaza McK. Mumma.
Response:
Objectors have not identified any instance in which there has been a "failure to (properly
account" for income paid to Mrs. Mumma. Nor have they presented any evidence or
testimony as to any instance in which there was any impropriety with any distrilbution of
income from the Estate or the Trusts to Mrs. Mumma. Under Mr. Mumma, Sr.'s will,
Mrs. Mumma was entitled to all of the income from the Estate, the Marital Trust end the
Residual Trust.
Obiection 7 (Mr. Mumma, II's Objection 7):
Whether the allocations of Decedent's corporate stock to the Marital Trust violated rights
of first refusal accruing to the undersigned.
Response:
Mr. Mumma, II has neither identified nor proved the existence of any "rights ' of first
refusal" he held with respect to any stock transferred to the Marital Trust." In'' a prior
decision, the Court held that (a) Mr. Mumma, II did not possess an alleged oral tight of
first refusal to purchase Penney Supply, Inc. and (b) Mr. Mumma, II did not possess such
a right under the Mumma Realty Associates agreements among tenants-in-common. See
Barbara McK. Mumma, et al. v. Robert M. Mumma, II, et al., No. 66 Egttit~ 1988,
Opinion and Order at 32 (C.P. Cumberland Mar. 24, 1992), post-trial motion denied and
final decree entered, Opinion and Order (C.P. Cumberland Nov. 5, 1992), a, fe`''d, ?133 Pa.
Super. 660, 639 A.2d 846 (1993), allocatur denied, 539 Pa. 679, 652 A.2d 132,4 (1994).
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Mr. Mumma, II's allegations with respect to the allegedly fraudulent nature of the
agreements among tenants-in-common and the corporate liquidations from which they
resulted are addressed in Sections VII.H.I and VII.H.2 of the Post-Hearing Brief To the
extent that Mr. Mumma, II claims rights of first refusal, those agreements are addressed
in Section VILG.
Objection 8 (Mr. Mumma II's Objection 8,j:
Whether the Executrices/Trustees failed to allocate capital gains and increases in!, value of
estate assets during administration to the Residuary Trust.
Response:
Objectors have not identified any instance in which any "gains and increases in (value of
estate assets" have been allocated or treated improperly during the administration of the
Estate or the Trusts.
Objection 9 (Mr. Mumma, II's Objection 9~:
Whether the Executrices/Trustees failure to significantly fund the Residuary Trust until
2002, while the Marital Trust was funded in 1987, violated the intent of the De~edent's
Will.
Response:
Objectors have presented no evidence or testimony to suggest that there vas any
impropriety or other failure with respect to the timing of the funding of the Residual
Trust. Nor have they presented any evidence that, even had there been some failure in
that regard, any injury or harm was suffered by the Residual Trust or the contingent
beneficiaries of the Residual Trust.
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Obiection 10 (Mr. Mumma, II's Objection 10,x:
Whether the Executrices/Trustees improperly accounted for the Fulton Bank property in
Lemoyne, Pennsylvania.
Response:
Objectors have not identified any respect in which Mrs. Mumma and Mrs. 1Nlorgan
somehow "improperly accounted" for the Fulton Bank building as an asset of the Estate
or, thereafter, the Marital Trust. To the extent that this Objection relates to th~ transfer of
the Fulton Bank building to Mrs. Mumma in partial satisfaction of her enxitl~ment to
statutory interest, the issue is discussed in Section VILA.1 of the Post-Hearing'B~ief.
Obiection 11 (Mr. Mumma II's Objection 11):
Whether the Executrices/Trustees improperly accounted for the Leadville, ~glorado
property.
Response:
Objectors have not identified any respect in which Mrs. Mumma and Mrs. Dorgan
"improperly accounted" for the property in Leadville, Colorado. Indeed, there I was no
evidence or testimony whatsoever regazding the handling or treatment of that ~rbperty
during the administration of the Estate or the Trusts.
Obiection 12 (Mr. Mumma II's Objection 12j:
Whether the Executrices/Trustees improperly accounted for the Bender property in
Mount Holly Springs, Pennsylvania.
Response:
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Objectors have not identified any respect in which Mrs. Mumma and Mrs. Morgan
somehow "improperly accounted" for the Bender property. To the extent .that this
Objection relates to the valuation of the Bender property for purposes of estatie tax and/or
the funding of the Marital Trust, those matters are addressed in Sections VL;A.!1, VLB.1
and VI.B.3.d of the Post-Hearing Brief.
Objection 13 (Mr. Mumma, II's Objection 13):
Whether the Executrices/Trustees improperly accounted for the Grove property ~n Mount
Holly Springs, Pennsylvania.
Response:
Objectors have not identified any respect in which Mrs. Mumma and Mrs. !Morgan
somehow "improperly accounted" for the Grove property. To the extent lthat this
Objection relates to the valuation of the Grove property for purposes of estate tajx and/or
the funding of the Marital Trust, those matters are addressed in Sections VLA.1', VLB.1
and VLB.3.d of the Post-Hearing Brief. ',
Objection 14 (Mr. Mumma, II's Objection 14):
Whether the Executrices/T'rustees undertook unilateral and unauthorized actions on
behalf of corporations and corporate enterprises and otherwise failed to comply with
applicable state law and regulations.
Response:
While there were throughout the hearing general allegations regarding improprieties by
Mrs. Mumma and Mrs. Morgan as to various corporate matters (most particulaxlyr Bobali
Corporation), Objectors offered no identification of and presented no evid$nce or
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testimony regarding any specific actions taken by Mrs. Mumma or Mrs. Mgrgan "on
behalf of corporations that were "unauthorized" or "failed to comply with applicable
state law or regulations." Moreover, actions taken by Mrs. Mumma and Mrs. Morgan as
directors or officers of corporations were not taken in their capacities as exec~tirices or
trustees and are, therefore, outside the scope of this proceeding. Any challenged to those
actions aze matters of corporate governance. In recognition of that fact, Mr. Muumma, II
has made numerous such allegations in other actions. Objectors' allegations ~egazding
various improprieties with respect to corporations or businesses in which the Estate or the
Trusts owned direct or indirect interests aze addressed in Section VII.H of fhe Post-
Hearing Brief.
Obiection 15 (Mr Mumma, II's Objection 15,x:
Whether the Executrices/Trustees have not recognized or have concealed shalr~holder
agreements that govern the ownership of corporate stock.
Response:
Objectors' allegations and evidence with respect to shareholders' agree~n~rits are
addressed in Section VII.G of the Post-Hearing Brief.
pbiection 16 (Mr. Mumma II's Objection 161:
Whether the Executrices/Trustees' actions and omissions with respect to shareholder
agreements would have precluded the estate from acquiring stock in multiple
corporations, including, but not limited to, Pennsylvania Supply Company, 'P~ennsy
Supply Inc., Bobali Corp., Lebanon Rock, Inc., High-Spec., Inc., Nine-Ninety-Nita, Inc.,
and/or 999, Inc.
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Response:
Objectors' allegations and evidence with respect to the existence or purported import of
shareholders' agreements aze addressed in Section VILG of the Post-Heazing ~r~e£
Obiection 17 (Mr Mumma, II's Objection 17).
Whether the Executrices/Trustees' properly controlled the Decedent's shazcs 'irn High-
Spec, Inc., Pennsylvania Supply Company, Pennsy Supply Inc., Bobali Corp., ',Lebanon
Rock, Inc., Nine-Ninety-Nine, Inc., and/or 999, Inc.
Response:
To the extent this Objection is premised upon the alleged existence of shar~hplders'
agreement binding upon the Estate or the Trusts as of the date of Mr. Mwnr~na, Sr.'s
death, Objectors' allegations and evidence aze addressed in Section VILG of the Post-
Hearing Brief. To the extent the Objection is based on other allegedly "frati~ulent"
conduct by Mrs. Mumma and Mrs. Morgan with respect to the listed corporations, these
issues aze addressed in Sections VILA.4, VILA.S, VILF and VILH.
Obiection 18 (Mr. Mumma II's Objection 18):
Whether the Executrices/Trustees violated the Shaze Restrictive Agreement appli~c~ble to
High-Spec, Inc. when they refused to offer to sell the Decedent's shazes in I$ig~h}Spec,
Inc. to the remaining shazeholder at book value.
Response:
Objectors' allegations and evidence relating to a purported agreement arnang the
shareholders of High-Spec, Inc. aze addressed in Section VILG.3 of the Post-Itlearing
Brief. Other allegations and evidence relating to High-Spec, Inc., including the
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protracted litigation relating to it, are addressed in Section VILA.4.b. Even had Mrs.
Mumma and Mrs. Morgan violated an agreement among the shazeholders of High-Spec,
Inc. by not offering Mr. Mumma, Sr.'s shazes in the corporation "to the remaining
shareholder at book value," any failure to do so did not constitute a breaclh of any
fiduciary duty owed by them to the Estate, the Trusts or the beneficiaries of either.
Rather, any such failure would have given rise, at most, to a claim by Mr. MWnma, II
against the Estate, a claim which is not be a proper grounds for an objeCtidn to the
accounts filed by Mrs. Mumma and Mrs. Morgan.
Objection 19 (Mr Mumma II's Objection 19):
Whether the Executrices/Trustees violated Section 3 of the Shaze Restrictive Agreement
applicable to High-Spec, Inc. when it [sic] transferred the Decedent's shazes in High-
Spec, Inc. to the Residuary Trust in January 2002 (See generally Objection #14 filed May
27, 2004).
Response:
Objectors' allegations and evidence. relating to a purported agreement ambhg the
shareholders of High-Spec, Inc. aze addressed in Section VII.G.3 of the Post-fearing
Brief.
Objection 20 (Mr Mumma, II's Objection 20,x:
Whether the Executrices/Trustees undervalued the stock of Pennsylvatia Supply
Company, Pennsy Supply Inc., Bobali Corp., Lebanon Rock, Inc., High-Spe¢.~ Inc.,
Nine-Ninety-Nine, Inc., and/or 999, Inc.
10
Response:
Objectors have presented no evidence or testimony as to the alleged "undervaluation" of
the stock of Bobali Corp., High-Spec, Inc. or "999, Inc." to the extent it is inkended to
refer to a corporation other than Nine Ninety-Nine, Inc. Objectors' allegatigns and
evidence relating to the alleged undervaluation of stock in other corporations fdr estate
tax or Marital Trust funding purposes aze addressed in Section VI of the Pbs~-~ieazing
Brief.
Obiection 21 !Mr Mumma, II's Objection 21~:
Whether the Executrices/Trustees overstated the value of the Decedent's corporatie ~ stock.
Response:
Objectors did not present any evidence or testimony suggesting that Mrs. M!urmrna and
Mrs. Morgan "overstated the value" of corporate stock owned by Mr. Mumma,' Sr.
Objection 22 (Mr Mumma II's Objection 221:
Whether the Executrices/Trustees have engaged in corporate transactions'. which
conveyed assets out of Pennsylvania Supply Company, Kim Company, Penney', Supply
Inc., Bobali Corp., Middle Pazk, Inc., Nine-Ninety-Nine, Inc., and/or 999, Inc.,, and other
unknown transactions.
Response:
While various transactions -for example, the liquidations of Pennsylvania supply
Company and Kim Company, the sale of the Pennsy Supply Businesses, va~iojus real
estate sales -have been the subject of evidence and testimony, this objection does not
allege, nor have Objectors presented evidence or testimony to prove, that ~n~ such
11
actions resulted in damage to the Estate or the Trusts. Objectors' allegattions and
evidence relating to various pazcels of real estate aze addressed in Section VII.B of the
Post-Hearing Brief.
Obiection 23 (Mr Mumma II's Objection 23):
Whether the Executrices/Trustees fraudulently terminated the corporate existence of
Middle Pazk, Inc. via merger with another corporate entity.
Response:
The merger of Middle Pazk, Inc. into Bobali Corporation is addressed in Section VILH.6
of the Post-Hearing Brief. With respect to the actions of Mrs. Mumma and Mrs.' Morgan
as executrices and trustees, Objectors presented no evidence that the Estate or Tryst was
harmed or shortchanged in the merger.
Obiection 24 (Mr Mumma II's Objection 24):
Whether the Executrices/Trustees knowingly concealed corporate records th~.t were
known to be altered in their effort to conceal the identity of true stock ownership.
Response:
Objectors' allegations regazding fraud or concealment by Mrs. Mumma and Mrs. ~viorgan
of various matters aze addressed in Section VII.H of the Post-Hearing Brief.
Obiection 25 (Mr Mumma II's Objection 25~:
Whether the Executrices/Trustees concealed their knowledge of the Decedent's. agtivities
prior to April 12, 1986 which became known to them and their accountants, ahd!, which
12
they further concealed via the Stradley Ronin [sicJ law firm, without any explanation of
same or without otherwise disclosing same to the shareholders.
Response:
Objectors have not offered any specifics or presented any testimony or evidence as to any
information regazding "Decedent's activities prior to April 12, 1986" of which Mrs.
Mumma or Mrs. Morgan became awaze, which they concealed or, most significantly,
which has any bearing on any actions taken by Mrs. Mumma and Mrs. Morgan as
executrices or trustees. Objectors' allegations regazding "fraudulent" condutct by Mrs.
Mumma and Mrs. Morgan aze addressed in Section VILH of the Post-Hearing B~i~f. The
actions of Stradley Ronon, and the results of its due diligence in connection with the
CRH transaction, aze discussed in Sections VILC and VILH.4.
Objection 26 (Mr Mumma, II's Objection 26,x:
Whether the Executrices/Trustees fraudulently misappropriated life insurance proceeds
rightfully owned by Pennsylvania Supply Company and Pennsy Supply.
Response:
Objectors presented no evidence or testimony with respect to life insurance, m~ah less
any evidence of any "misappropriation" of the proceeds of any life insurance policies.
The issue is addressed in Section VII.A.6 of the Post-Hearing Brief.
Objection 27 (Mr Mumma, II's Objecti_ 'o__ n 2~):
Whether the Executrices/Trustees individually assumed corporate designations which
were not set forth in any corporate by-laws.
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Response:
Objectors have not presented any evidence or testimony that Mrs. Mumma or Mrs.
Morgan "assumed corporate designations which were not set forth in any corporate by-
laws," that any such assumption, assuming it occurred, was in any way improper, or that
such actions resulted in any adverse impact to the Estate or the Trusts. This objection
expressly references actions were taken by Mrs. Mumma and Mrs. Morgan
"individually" rather than as executrices or trustees.
Objection 28 (Mr Mumma, II's Objecti_ o_n Zg);
Whether the ExecutriceslTrustees individually assumed corporate positions to 'wMi~h they
were not elected and which were not otherwise authorized.
Response:
Objectors have not presented any evidence or testimony that Mrs. Mumriia or Mrs.
Morgan "assumed corporate positions to which they were not elected and which `overe not
otherwise authorized," that any such assumption, assuming it occurred, was in any way
improper, or that such actions resulted in any adverse impact to the Estate or the Tnasts.
Objection 29 (Mr Mumma, II's Objection 291:
Whether the Executrices/Trustees have awarded themselves salaries and health insurance
benefits that were never authorized.
Response:
Objectors have not presented evidence or testimony as to any salaries or health insurance
benefits paid to Mrs. Mumma or Mrs. Morgan, much less that they "awarded" s~clt items
to themselves or that any such items were "never authorized." To the extent this
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Objection relates to executrix commissions or trustee fees paid to Mrs. Moran, those
issues aze addressed in Section VIII of the Post-Hearing Brief.
Obiection 30 (Mr Mumma, II's Objection 301:
Whether the Executrices/Trustees have failed to account for or document s~g9nificant
changes in major investment holdings of the Estate.
Response:
Objectors have not identified any specific "significant changes in major inlr~stment
holdings of the Estate," nor have they offered any specifics or presented any evidence or
testimony regarding any "failure to account" for such changes.
Obiection 31 (Mr Mumma, II's Objection 31):
Whether the Executrices/Trustees engaged in and/or have continued to engajg~ in a
systematic pattern of self-dealing and personal enhancement.
Response:
Objectors have not presented any evidence or testimony showing any "self-dealing" or
any "pattern of self-dealing and personal enhancement" by Mrs. Mumma arxd Mrs.
Morgan, whether "systematic" or otherwise.
Obiection 32 (Mr Mumma II's Obiection 321:
Whether withdrawals from the Marital Trust have substantially diminished the interests
of the beneficiaries/remaindermen while greatly enhancing the interests ~f the
Executrices/Trustees.
15
Response:
Mrs. Mumma's annual exercises of her 5% withdrawal right aze addressed in Section V
of the Post-Heazing Brief.
Obiection 33 (Mr Mumma, II's Objection 33~:
Whether the Executrices/Trustees properly selected and retained Estate counsel.
Response:
The selection and compensation of counsel by Mrs. Mumma and Mrs. Morgan is
addressed in Section lX of the Post-Hearing Brief. Various litigation matters handled by
counsel aze addressed in greater detail in Sections VII.A.4 and VII.A.S.
Obiection 34 (Mr Mumma II's Objection 34):
Whether the Executrices/Trustees aze paying duplicative, excessive, or unjustified
counsel fees to Estate counsel.
Response:
The compensation of counsel by Mrs. Mumma and Mrs. Morgan is addressed in Section
1X of the Post-Hearing Brief. Various litigation matters handled by caunsel are
addressed in greater detail in Sections VII.A.4 and VII.A.S.
Obiection 35 (Mr Mumma, II's Objection 35):
Whether the Executrices/Trustees aze paying excessive or unjustified accountant !,fees to
the Estate accountant(s).
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Response:
The compensation of the accountants retained by Mrs. Mumma and Mrs. Morgan is
addressed in Section IX.E of the Post-Hearing Brief.
Obiection 36 (Mr Mumma, II's Obiection 36):
Whether the Executrices/Trustees have perpetuated and engaged in and co#~tinue to
perpetuate and engage in an enterprise and/or scheme of fraudulent conveyances df estate
assets.
Response:
Objectors have not presented evidence or testimony showing that there have occurred any
"fraudulent conveyances" of Estate or Trust assets, or, in fact, that any transfers of assets
have resulted in hazm or loss to the Estate or the Trusts. Mr. Mumma, II's carious
allegations of "fraudulent" conduct aze addressed in Section VII.H of The PastiHeazing
Brief.
Objection 37 (Mr Mumma II's Objection 37);
Whether the Executrices/Trustees have failed to account for or document the contents of
all safe deposit boxes owned individually or jointly by the Decedent.
Response:
Objectors have not presented any evidence that any contents of any safe deposit bakes in
which Mr. Mumma, Sr. held an interest at his death were not "accounted far" or
"documented." The safe deposit boxes in which Mr. Mumma, Sr. held an inte~eslt at his
death are addressed in Section VILA.2 of the Post-Hearing Brief.
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Objection 38 (Mr Mumma, II's Objection 3g):
Whether the Executrices/Trustees have failed to account for or document the value of all
bank accounts owned individually or jointly by the Decedent.
Response:
Objectors have not presented evidence or testimony of any bank account in which Mr.
Mumma, Sr. held an interest at his death which Mrs. Mumma and Mrs. Morgan have
"failed to account for or document the value of...."
Obiection 39 (Mr Mumma, II's Objection 39):
Whether the Executrices/Trustees have failed to account for or document the Debedent's
documents, contracts, and other records throughout the administration of the Estate,
including the failure to account for their storage and record-keeping in Pennsylvania,
Florida, Europe, and elsewhere.
Response:
Objectors have not presented evidence or testimony that Mrs. Mumma and Mrs. Morgan
"failed to account for or document" any documents relating to the Estate, the T#vsts or
their administration. Mrs. Mumma and Mrs. Morgan aze uncertain what xhQ terms
"account for" and "document" aze intended to connote in this context. Objectors also
failed to present any evidence that there existed at the time of Mr. Mumma, Sr.'s dieath or
at any time since any "documents, contracts, and other records" in Europe. The existence
of documents and their production has been a subject of evidence, azgument and tidings
throughout these proceedings.
Obiection 40 (Mr Mumma, II's Obiection 40):
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Whether the Executrices/Tnistees refused to entertain the highest and best offers of
purchase of the Decedent's property and/or enterprises thereby failing to maximize the
value of the Estate.
Response:
Objectors have not presented any evidence or testimony that Mrs, Mumma ~md Mrs.
Morgan "refused to entertain the highest and best offers of purchase of ' D~aedent's
property and/or enterprises...." No evidence was presented as to the terms or a#rtount of
any alternative or competing offers received by Mrs. Mumma or Mrs, Morgan for any
asset owned by the Estate or the Trust, or how any such offer compazed with the value
and terms obtained by Mrs. Mumma and Mrs. Morgan for any asset. The only.. alternative
to CRH as a purchaser as to whom Objectors presented any evidence or testimony was
Mr. Mumma, II. His purported interest in purchasing the businesses is addrlssed in
Sections VI.B.3.d and VII.C or the Post-Hearing Brief.
Obiection 41 (Mr Mumma, II's Objection 41):
Whether the Executrices/Trustees have failed to carry out the terms of the De~e!dent's
Will and/or acted in contravention of the Decedent's testamentary plan.
Response:
The alleged failure of Mrs. Mumma and Mrs. Morgan to follow Mr. Mumim~, Sr.'s
"testamentary plan" is addressed in Section VII.A.7 of the Post-Hearing Brief.
Obiection 42 (Mr Mumma, II's Obiection 42):
Whether the Executrices/Trustees aze subject to surchazge attributable to them acts or
omission.
19
Response:
The legal standards governing surchazge aze discussed in Sections II and III of the Post-
Hearing Brief. As demonstrated in the Brief, Objectors have presented no! evidence
warranting imposition of any surchazge.
Obiection 43 (Babs Mumma's Objection 1);
Whether the selection of assets to be distributed to the Marital Trust and to tht Residuary
Trust was appropriate. In order to resolve this objection and several others, tt will be
necessary to understand the justification for what appeared to be a counte~rpuoductive
asset distribution strategy. Assets for which rapid appreciation could be expected were
placed in the Marital Trust, not the Residuary Trust, thereby creating the pbt~ntial for
unnecessary estate tax liability upon the death of Bazbaza McKimmie Mumma.
Response:
Objectors have not presented any evidence or testimony that Mrs. Mumma and Mrs.
Morgan employed any "counterproductive asset distribution strategy." The gist of this
Objection seems to be that actions of Mrs. Mumma and Mrs. Morgan in allocaltinjg assets
to the Marital and Residuary Trusts resulted in "the potential for unnecessary' estate tax
liability" in Mrs. Mumma's estate. No evidence or testimony was presented a5 to the
nature or scope of this "potential" tax liability, how it was impacted by th$ .assets
allocated to the two trusts, how the alleged "unnecessary" tax liability might have been
avoided, or why Mrs. Mumma and Mrs. Morgan owed a duty as executrices and trustees
to minimize taxes in Mrs. Mumma's estate. To the extent that this Objection relates to
the decision to make QTIP elections for both the Marital and the Residual Trusts, that
election and the consent of the remaindermen to it is addressed in Section VII.~.3 of the
Post-Hearing Brief.
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Obiection 44 Babs Mumma's Objecti___on 2);
Whether assets distributed to Bazbaza McKimmie Mumma as income distributions,
including the Fulton Bank property, were undervalued thereby prejudicing the interests of
other beneficiaries. In order to resolve this objection, it will be necessary to determine
the method by which various non-liquid assets were valued and the appropriateness of the
valuations.
Response:
The use of the Fulton Bank building to satisfy Mrs. Mumma's statutory entitlement to
interest and the valuation of that property aze addressed in Sections VI.A.1, VI,B.1 and
VII.A.1 of the Post-Hearing Brief.
Obiection 45 (Babs Momma's Objection 3):
Whether assets distributed to Bazbaza McKimmie Mumma pursuant to her power to
receive an annual distribution of 5% of the value of the Marital Trust, were undervalued
thereby prejudicing the interests of other beneficiaries. In order to resolve this objection,
it will be necessary to determine the method by which various non-liquid assets were
valued.
Response:
The valuation and selection of assets used to fund the Marital Trust aze addressed in
Section VI of the Post-Hearing Brief.
Objection 46 abs Momma's Objection 4
Whether discretionary distributions were made to Bazbaza McKimmie Mumma fr~rri the
Marital Trust despite her indication that she. did not want distributions unless requirled for
21
her immediate expenses. In order to resolve this objection, it will be necessary to
determine the advice and strategy, as well as the nature of the input from Mrs. Mumma,
that resulted in substantial distributions being made to Mrs. Mumma in years when she
did not have any need for funds and in circumstances which appeared to run Qounter to
her expressed family financial and tax strategy.
Response:
Babs Mumma has withdrawn Objection 46. Mrs. Momma's exercises of her 5%
withdrawal right are addressed in Section V of the Post-Hearing Brief.
Objection 47 (Babs Momma's Objech_o!;
Whether estate assets, including entities in which estate had an interest, were managed
efficiently. In order to resolve this objection, it will be necessary to determine iuvhy the
estate adopted a strategy of allowing real estate assets of the estate and of Bbbali to
remain unproductive for extended periods of time and, in some cases, of not even paying
the real estate taxes due on properties, thereby risking that they would be sold at tax sale
and their future value lost to the estate permanently.
Response:
Mrs. Mumma and Mrs. Morgan's overall administration of the Estate and the Trtusts is
addressed in Section I of the Post-Hearing Brief. Individual real estate assets as to which
allegations or evidence were presented at the hearing are addressed in Section VII.B.
Bobali Corporation is addressed in Section VILF.
Objection 48 (Babs Momma's Objection 6);
Whether the Estate was wound up promptly and efficiently, without incurring
unnecessary legal and other expenses and prejudicing the interests of beneficiaries. In
22
order to resolve this objection, it will be necessary to determine why the estate has
remained open for over twenty-two yeazs and why some assets have remained unsold and
unproductive for that period of time. It is evident that there have been various legal
proceedings related to the estate, but it is faz from cleaz why the estate could not have
been wound up more quickly and without the attendant legal expense.
Response:
Mrs. Mumma and Mrs. Morgan's alleged "undue" delay in closing the >/state is
addressed in Section 1X.D of the Post-Hearing Brief. The overall legal and other costs
associated with the administration of the Estate is addressed in Section IX. Objectors
have not presented any evidence or testimony as to the alleged failure of Mrs. $Vlumma
and Mrs. Morgan to "wind up the Estate promptly." There has not been any e!viglence as
to any steps needed to close the Estate that could or should have occurred eazlidr.
Objection 49 (Babs Mumma's Objection 7):
Whether the Estate was administered in a manner that exacerbated friction among family
members thereby delaying the administration of the estate and increasing legal arid, other
expenses. In particulaz, Babs Mumma is concerned that the approach adopted b,y counsel
to the estate -whatever the legal merit of any particulaz position on any particulaz issue -
has led to unnecessary friction among family members. It was the intent of the Testator
that his assets be utilized in a manner that would allow, to the greatest extent possible, for
all family members to benefit jointly and engage in joint efforts to make the '' best and
most productive use of family assets and to solidify rather than undermine family bonds.
Particulazly in light of that intention, means could have been pursued to resolve same or
all of these matters by an amicable process which would have lessened rather than
increased tensions and ultimately would have benefitted all family members.
23
Response:
The legal standazds governing Mrs. Mumma and Mrs. Morgan's actions as fiduciaries are
addressed in Sections II and III of the Post-Hearing Brief. Their efforts tp provide
information relative to the Estate and the Trusts, and the factors impacting their' ability to
do so, are addressed in Section VILA.3, as aze the limitations on Mrs. Mummaiand Mrs.
Morgan's ability to accommodate the wishes of Objectors when those wishes conflicted
with their own best judgment. Mrs. Mumma and Mrs. Morgan's efforts to enlist the
family members in discussions relating to Bobali Corporation aze discussed id Section
VILF. Objectors' azguments that Mrs. Mumma and Mrs. Morgan's conduct warrants
removal of Mrs. Morgan as a fiduciary aze addressed in Section X.C.
~~
No V. Otto, III
George B. Faller, Jr.
Jennifer L. Speazs
Maztson Law Offices
10 East High Street
Cazlisle, PA 17013
717.243.3341
Brady L. Green
Morgan, Lewis & Bockius LLP
1701 Mazket Street
Philadelphia, PA 19103-2921
215.963.5079
Attorneys for Bazbaza McK. Mumma
and Lisa M. Morgan as Executrices of
and Trustees Under the Will of Robert.
M. Mumma
Dated: October 8, 2010
24
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Manson Deazdorff Williams Qtto Gilroy &
Faller, hereby certify that a copy of the foregoing Post-Hearing Response of Bazbaza Mck. Mumma
(Deceased) and Lisa M. Morgan as Executrices of and Trustees Under the Will of Robert M.
Mumma to Objections was served this date by depositing same in the Post Office at' Cazlisle, PA,
first class mail, postage prepaid, addressed as follows:
Mr. Robert M. Mumma, II
P.O. Box F
Grantham, PA 17027
Mr. Robert M. Mumma, II
840 Mazket Street, Suite 164
Lemoyne, PA 17043
Mr. Robert M. Mumma, II
6880 S.E. Hazbor Circle
Stuart, FL 34996-1968
Ms. Bazbaza M. Mumma
541 Bridgeview Drive
Lemoyne, PA 17043
Ms. Linda M. Mumma
512 Creekview Lane
Mechanicsburg, PA 17055
Ms. Linda Mumma
c/o Carter Ellis
203 Friazs Court
Mechanicsburg, FA 17050
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
MARTSON LAW OFFICES
By
Tricia D. Ec enroad
Ten East High eet
Dated: October 8, 2010 Cazlisle, PA 17013
(717) 243-3341