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Richard F. Rinaldo _a
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Pa. I.D. No. 33222 ~
Williams Coulson Johnson Lloyd
Parker & Tedesco, LLC
One Gateway Center, 16th Floor
Pittsburgh, PA 15222
(412-454-0200
Attorneys for Barbara M. Mumma
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~ THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ORPHANS' COURT DIVISION
In re:
Estate of Robert M. Mumma, Deceased. No 21-86_398
RESPONSE OF BARBARA M^MUMMA INDOPPOFCTAO FTO
In accordance with the Rule to Show Cause issued by this Court on June 7,
2012, Barbara M. Mumma ("Babs Mumma"), by her attorneys, Williams Coulson
Johnson Lloyd Parker & Tedesco, LLC, hereby files and serves Barbara Mumma's
Res onse in Opposition to the Petition to Authorize Sale of Real Estate (the "Peti-
P
tion" and respectfully requests that this Court not grant the relief requested by the
Petition.
Answer
1. Babs Mumma hereby incorporates herein paragraphs 1 through 12 and
the New Matter set forth in the Response of Barbara M. Mumma in Opposition to
Petition to Authorize Plan of Liquidation.
2. Admitted.
3. Admitted.
4. As to the allegations of paragraph 4 of the Petition, a copy of the
Agreement Among Tenants-In-Common made as of December 19, 1986 is at-
tached hereto as Exhibit 1 and is hereby incorporated herein by reference (the
MRA I Agreement"). Assuming that the undivided 81.82507% interest previously
held by the Estate of Robert M. Mumma, deceased is now held by the Residuary
Trust, it appears that the percentage interests recited in paragraph 4 of the Petition
are accurate.
5. As to the allegations of paragraph 5 of the Petition, Babs Mumma de-
nies the allegations in part and as stated. Babs Mumma avers that Mrs. Morgan
currently, in her capacity as Trustee of the Residuary Trust, controls an undivided
81.82507% interest in MRA I. Babs Mumma has no reason to dispute that, in her
capacity as Executrix of the Estate of Barbara McK. Mumma, Lisa Morgan con-
trolled or controls an undivided 1.22120% interest in NIRA I, although Babs
Mumma is informed and believes that the Estate of Barbara McK. Mumma has
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been closed. Babs Mumma further avers that, in her individual capacity, Lisa
Morgan owns an undivided 4.23555% interest in MRA I. Although the three per-
centages of undivided interest in MRA I to which paragraph 5 of the Petition refers
mathematically total greater than 50% of the total undivided interest, that fact that
the three interests together total more than 50% is not material, given the express
provisions of the MRA I Agreement itself, which mandates that the interest held by
each of the parties is an undivided interest and no owner "shall dispose of, sell,
transfer, assign, convey, mortgage, pledge, grant a security interest in, hypothecate
or encumber part or all of his or her undivided interest in the Premises without the
prior consent of the Owners, and any such transaction purported to be accom-
plished contrary to the provisions hereof shall be absolutely void." See MRA I
Agreement, ¶ 3(b).
6. As to the allegations of paragraph 6 of the Petition, Babs Mumma re-
sponds that she lacks information sufficient to respond as to whether Mrs. Morgan
currently remains the sole shareholder, director and officer of Mumma Realty As-
sociates, Inc. However, Babs Mumma avers that, according to the Pennsylvania
Department of State, Corporations Bureau, as of June 20, 2012 Robert M. Mumma
II is listed as the Treasurer of Mumma Realty Associates, Inc. As to whether Mrs.
Morgan currently holds the position of "Manager" of MRA I pursuant to paragraph
1(a) of the MRA I Agreement, Babs Mumma responds that, assuming that Mrs.
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Morgan does currently hold the position of Manager, paragraph 1(e)(i) of the NIRA
I Agreement expressly provides that "no Manager (or Owner) on behalf of the
Owners, without the consent of the Owners, shall have any right or authority im-
plied or apparent: (i) to sell or encumber the Premises or any part thereof or any
interest of an Owner therein except as provided in Section 3 below ...." See MRA
I Agreement, ¶ 1(e)(i).
7. Admitted.
8. As to the allegations of paragraph 8 of the Petition, Mrs. Morgan
clearly desires to sell certain parcels of real property, including those to which the
Petition refers in paragraph 8 of the Petition. However, Babs Mumma avers that
the asset of the Trust at issue is an undivided 81.82507% interest in NIRA I, and it
is not title to ownership of the real estate in question. Babs Mumma further admits
that the summary of appraisals dated July 17, 2010 appears to value the parcels
which Lisa Morgan seeks to sell at $205,000.00.1 As to the remaining allegations
of paragraph 8 of the Petition, regarding the alleged Agreement for Purchase and
Sale, a copy of which document is attached as Exhibit B to the Petition, Babs
1 There appears to be at least a minor discrepancy between the summary of ap-
praisals contained in Exhibit A and the alleged "Agreement for Purchase and Sale"
attached to the Petition as Exhibit B. The appraisal refers to the property (which
consists of two parcels) as aggregating 2.18 acres. The Agreement for Purchase
and Sale, in Recital A thereof and in Exhibit A thereto, refers to 2.17 acres of real
property. It is not clear whether this is a typographical error or whether 0.1 acres
of real property is being reserved.
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Mumma was not involved in any negotiations or discussions leading to the alleged
execution of this document, and was not privy to any discussions or agreements
concerning the circumstances under which Lisa Morgan is attempting to have the
sale take place. However, Babs Morgan avers that the alleged Agreement for Pur-
chase and Sale attached as Exhibit B to the Petition ("the Proposed Purchase
Agreement") is void on its face. The document recites that the "Seller" is Mumma
Realty Associates, I. However, the Proposed Purchase Agreement lists only the
Residuary Trust of Robert M. Mumma, Sr., the Estate of Barbara McK Mumma
and Lisa M. Morgan, individually, as the holders of an interest in MRA I, and does
not identify or even imply that Babs Mumma, Robert M. Mumma, II and Linda M.
Mumma also hold undivided interests in MRA I. There is nothing in the Proposed
Purchase Agreement which indicates that the prospective buyer, BT-NEWYO,
LLC, has even been informed that there are three other persons who own undivid-
ed interests in the real property subject to the Proposed Purchase Agreement and
that, without their consent, which Lisa Morgan has not even sought, much less re-
ceived, Lisa Morgan cannot convey clear title to the property in question under the
terms of the governing contract, the MRA I Agreement. Babs Mumma was not
consulted prior to the signing of the Proposed Purchase Agreement and, on infor-
mation and belief, RMM II and Linda Mumma also were not consulted. Moreover,
Paragraph 3(b} of the MRA I Agreement prohibits Lisa Morgan from conveying or
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seeking to convey the property in the manner in which Lisa Morgan seeks to have
this Court approve. See MRA I Agreement, ¶ 3(b). Even more, the unequivocal
language of the MRA I Agreement declares that "any such transaction purported to
be accomplished contrary to the provisions hereof shall be absolutely void." Id.
9. As to the allegations of paragraph 9 of the Petition, Babs Mumma de-
nies that Lisa Morgan is entitled to any order from this Court authorizing her to
proceed with the sale of the Real Estate as described in the Petition. To the contra-
ry, any order of this Court must deny the Petition and deny any such authorization
without the express agreement and consent of Babs Mumma, RMM II and Linda
Mumma, each of whom has an undivided interest in the real estate which Lisa
Morgan now seeks to sell. The Residuary Trust does not own the real estate in
question. Lisa Morgan has proceeded to enter into the Proposed Purchase Agree-
ment in clear and unequivocal violation of the express terms of the MRA I Agree-
ment . This Court therefore lacks the jurisdiction and authority to permit such
conveyance.
WHEREFORE, Respondent Barbara M. Mumma respectfully requests that
this Court deny the Petition and the relief requested by Lisa Morgan.
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New Matter
10. Babs Mumma hereby incorporates herein by reference the New Mat-
ter set forth in the Response of Barbara M. Mumma in Opposition to Petition to Au-
thorize Plan of Liquidation, filed in this matter and served on Apri126, 2012.
11. Babs Mumma has received no information concerning the financial
condition, assets or obligations of the Trusts since the last day in which a heari
ng
was conducted before the Auditor, and has no current information with res ect to
p
the financial condition of the Trusts.
12. No appraisals have been done for any of the properties to which the
Petition refers since 2010, and as to certain of those appraisals, there is substan '
teal
question as to their accuracy or reliability.
13. A true and correct copy of the NIRA I Agreement is attached hereto as
Exhibit 1.
14. Paragraph 1(e) of the MRA I Agreement provides as follows: "no
Manager (or Owner) on behalf of the Owners, without the consent of the Owne
rs,
shall have any right or authority implied or apparent: (i) to sell or encumber t
he
Premises or any part thereof or any interest of an Owner therein except as rovide
p d
in Section 3 below." See MRA I Agreement, ¶ 1(e).
15. Paragraph 3 of the MRA I Agreement prohibits Petitioner from sellin
g
or conveying the real estate which is the subject of the Proposed Purchase Agree-
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ment "without the prior consent of the Owners and any such transaction purported
to be accomplished contrary to the provisions hereof shall be absolutely void." See
MRA I Agreement, ¶ 3(b).
16. Paragraph 3 of the MRA I Agreement also requires that Petitioner no-
tify Babs Mumma of her intention to sell or convey the property in question and
"gives the other Owners the first right to purchase the portion of the interest of such
Owner in the Premises sought to be conveyed." After receiving such notice, Babs
Mumma and the other owners so notified "shall have a period of 60 days within
which to accept or reject the same by notice in writing to the Offeror." See MRA I
Agreement, ¶ 3 (b).2
17. The Petition does not claim that Babs Mumma was given a right of
first refusal as required by the MRA I Agreement.
18. Petitioner has not given Babs Mumma the notice required under the
MRA I Agreement and did not offer Babs Mumma a right of first refusal in 2012
prior to entering into the Proposed Purchase Agreement.
a It may appear that there is an inconsistency between paragraph 1 of the MRA I
Agreement and paragraph 4 of the MRA I Agreement as to the circumstances un-
der which property can be sold. However, despite the language of paragraph 4 of
the MRA I Agreement, it is clear that paragraph 1(e) of the MRA I Agreement
mandates that no owner or combination of owners can "sell ...any interest of an
Owner therein except as provided in Section 3 below." Id. (emphasis supplied).
Paragraph 1 of the MRA I Agreement does not state, "except as provided in Sec-
tion 3 and 4 below." Under the current circumstances, Babs Mumma respectfully
submits that Paragraphs 1 and 3 of the MRA I Agreement control.
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19. In the event that Petitioner transfers her interest and the interest of the
Residuary Trust in the real estate in question pursuant to the proposed Agreement of
Sale, Babs Mumma will still retain an undivided 4.23555% in the real estate in
question.
20. The proposed Purchase Agreement between Petitioner and BT-
NEWYO, LLC does not identify Babs Mumma, RMM II and Linda Mumma as
having an undivided percentage interest in the real estate in question, either in the
Recitals or in the proposed signature sections.
21. The Petition fails to state a claim for which relief can be granted be-
cause the court lacks the authority and jurisdiction to require Babs Mumma to con-
vey her undivided 4.23555% interest in the real estate in question over her objection
and, presumably, the same would be true for RMM II and for Linda Mumma.
22. The Petition fails to state a claim for which relief can be granted be-
cause the relief sought would clearly impair the obligation of contract and would
countenance and authorize Petitioner to violate the MRA I Agreement with impuni-
ty.
23. The Petition fails to state a claim for which relief can be granted be-
cause paragraph 6 of the MRA I Agreement is an Arbitration Clause which requires
the parties, in the event of a dispute, to submit their dispute for "conclusive resolu-
tion" by a single arbitrator in Dauphin County, PA, in accordance with the rules of
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merican Arbitration Association. See MRA I Agreement, ¶ 6. See also Pa.
the A
028 a 6 (agreement for alternate dispute resolution); 42 Pa.C.S. § 7304(a)
R.C.P. 1 ()( )
a lication to a court to compel arbitration in the event that an opposing party
(on pp
to arbitrate, "the court shall order the parties to proceed with arbitration").
refuses
Babs Mumma has not waived and does not waive her right to demand
24.
arbitration of this dispute.
The real estate in question appears to be identified as item No. 11 in
25.
ar of A praisals for the Marital and Residuary Trusts attached to the
the Summ y p
-filed Petition to Authorize Plan of Liquidation, identifying the properties
previously
Nos. 63-024-102 and 62-024-112, showing a claimed appraised value of
as Tax ID
$205,000.
The real estate in question is contiguous to a 61-acre property owned
26.
ali Co oration, which is identified as item No. 4 on the Summary of Ap-
by Bob ~
or the Marital and Residuary Trusts attached to the previously-filed Peti-
praisals f
Authorize Liquidation, identified as Tax ID No. 63-024-039, and showing a
tion to
raised value of $2,300,000, which is more than ten times the claimed
claimed app
raised value of the real estate in question referenced in paragraph 23 above.
app
27. Babs Mumma is informed and believes that the sale of the real estate
tion identified in paragraph 23 above will have a substantial deleterious im-
m ques
pact on the value of the property owned by Bobali Corporation.
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28. Babs Mumma is informed and believes that the sale of the real proper-
ty in question to a third party as set forth in the Proposed Purchase Agreement will
eliminate a substantial means of access to the property owned by Bobali Corpora-
tion, and will make development, subdivision or sale of the property owned by
Bobali Corporation significantly more difficult and costly.
29. The shareholders of Bobali Corporation include the beneficiaries of
the Trusts. Mrs. Morgan has averred in separate litigation pending in the Court of
Common Pleas of Dauphin County that the Marital Trust owns 14.28% of the
shares of Bobali Corporation. See Morgan v. Mumma, Civil Division No. 2010-cv-
11490-EQ (C. P. Dauphin Co.)
30. If the sale of the real estate in question diminishes the value of the
property owned by Bobali Corporation, such diminution will also necessarily di-
minish the value of the stock in Bobali Corporation owned by the Trust.
31. Babs Mumma is informed and believes that, given that Mrs. Morgan
has represented that the proposed purchaser under the Proposed Purchase Agree-
ment wishes to use the real estate in question as a parking lot, Mrs. Morgan and the
other parties in interest who own undivided interests in 1VIRA I should investigate
the possibility of negotiating a lease rather than an outright sale, retaining the possi-
bility and right of access across the real estate in question to retain access to the
property owned by Bobali Corporation.
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32. There are substantial alternative methods for disposition or distribu-
tion of the assets of the Trusts which would vastly be in the better interests of the
four beneficiaries of the Trusts, including Lisa Morgan herself. Liquidation of the
assets and sale of all the real properties, including the real estate in question in the
Petition, would not only be premature, but also would be economically disadvanta-
geous to the beneficiaries and clearly not in their best interests and would violate
both the express provisions of the Will and the intent of the Testator.
33. To the extent that Mrs. Morgan seeks to sell the real estate in question
to provide cash to the Trusts in order to satisfy financial obligations of the Trusts,
such sale clearly is not necessary at this time because there are substantial and suf-
ficient alternatives available to provide sufficient liquid revenue to satisfy such ob-
ligations.
WHEREFORE, Respondent Barbara M. Mumma respectfully requests that
this Court deny the Petition and the relief requested by Lisa Morgan.
WILLIAMS COULSON JOHNSON LLOYD
PARKER & TEDESCO, LLC
B
Y•
Richard F. Rinaldo
Dated: June 21, 2012 Attorneys for Barbara M. Mumma
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1
~1.gr~, P~EALTY P.SSDCIATES
AGREEMEl~T AMONG TENANTS-IN-COMMON
AGREEMENT made as of the 19th day of December, 1985
b and among the persons whose signatures appear at the end
Y
of this Agreement, hereinafter sometimes individually called
an "Owner" and collectively the "Owners."
WHEREAS the Owners own 100% of the. real property
which was conveyed into the name of Mumma Realty P_ssociates,
having Originally been owned by Kim Company, a Pennsylvania
corporation; by its jfli.nt deed of ICam cempaa?Y and
Pennsylvania Supply Company, Harrisburg, Pennsylvania, dated
DocP~er ~ g ~ 1986, in connection with the liqui dation of said
cDrpDratioi7S acid ?°eCOrded as ~g`t forth ~n 1';nneX A L1 E'YeL-~ '
~ A ~ e "Premises") , .as tenants-? n-CDIItIIlon,
(hereinafter cal_~d ~h
with undivided percentage interests therein presently as set
forth on the signature page hereof, and wish to enter ~ntD
this Agreement to provide for the management and ultimate
disposition of the Premises and to govern the relationship
among themselves during the period Of'their joint ownership-
NOW THEREFORE, the Owners, in consideration of the
mutual promises expressed herein and each intending to be
legally bound hereby, agree a5 follows:
A pointment of Mana er • P.uthorit
1.
The Owners shall select a person (or
(a) ent for the Dwners in the management of
persons) to act as ag
erson (s)
the Premises as.hereinafter set forth, and such P s ~ teem-ent
u on acceptance of the terms and conditions of thi g
P Any Manager
shall become manager hereunder (the Manager")•
a resign at any time- Any Manager may be removed by
m y
Bement of the Owners . The initial Manager shall be t e
agr indicating
ehecuted the last page hereof ,
corporation having
its acceptance of the terms of this ~gr~ement.
(b) The Manager shall have the following
for and on behalf of the
duties, rights and authority,
owners:
available space ~ n the
1.:....,
(i\ T~ Gt d'Y el Ll~C
JJ plans, circulars
Premises through the use of renting-signs,
and other-forms of advertising acceptable to the Owners.
. ( ii) T 6 r~Flt ~pa~~ n6w 6~ ~ierEai ter
vacant to desirable tenants on terms and conditions
becoming
ca±i cf?,r~finry t~ 4,_ha flc;rnor'S.
(iii) To collect all rents and other
income payable with respect to the Premises.
To institute legal actions or
(iv)
roceedings for-the collection of delinquent rents and other
P-
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_ from the .Premises and for the dispossession .of tenants
income .
or other persons therefrom.
(v) To make or cause to be made all
necessary repairs to the Premises, to purchase all necessary
u lies and materials, and to do all other things necessary
s pp
a clean, safe and orderly
to maintain the Premises in state
condition and to ensure compliance with all federal,
and local statutes, ordinances, rules and regulations.
applicable to the operation of the Premises.
(vi) To contract for electricity, gas,
t 1
'a U1.c'aillilg J Yost vvii r v a'Z
tGl'G~11 CJlle w111uvw '
~J f
fiici Gib., "viatc%,
,ch other services as shall be necessary and advisable f or
sL
th° D. ^pcr op_Z"ctlon of Lho P_ ~'-Tlicea °
(vii ) To DarfDrlll all other services
protection, maintenance
reasonably necessary for the care,
'on of the Premises and the prevention of waste,
and operate
damage or injuiy thereto.
(viii) To hire, discharge and supervise
ersons employed to carry out Manager's duties hereunder,
all p of
or to contract with any other entity for the furnishing
uch services. Any employee hired in the management of the
s
remises shall be the employee of the Manager and not of t e
P
Owners.
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(ix) To prepare and file all forms for
unemployment insurance, withholding taxes, social security
tares, workmen's compensation and other forms required by
federal, state or municipal authorities in connection with
employees, if any, employed by the Manager in the operation
of the Premises .
(x) To establish and maintain complete
and orderly files containing correspondence, rent records,
payroll records, insurance policies, leases, receipts, unpaid
bills, vouchers and all other documents and papers pertaining
to the Premises and the management and operation thereof, all
of which shall be and remain the property of the owners and
shall be available to any Owner and his or her
rcp~°csC.ntatlV~s for ii1~p2C~1Cn.
fxi) To review all bills and statements
received for services, wor}:, supplies and other expenditures
incurred by or on behalf of the Owners in connection with the
mainienance, operation and ownership of th.e Premises and tb
pay or cause to be paid in a timely fashion all e}:penses
~~~F ri sppa i pp v+~+. rlo+- ? r7 1-,~~ t}-:e Ilirttnorc
11LLLhVLlU G1.d. 1G1ti=u11\.lGl LL U~J t.Jl /~Y CU. /~'
(xii) To review periodically all hazard,
liability and other insurance carried for the account of the
Owners in connection with the Premises and to maintain in
r__~_ the Manager
1VLLC and cffeCt SiiCli liisLlrailGc Co'rcrage as
reasonably deems necessary to protect the Owners' and the
-4-
Manager`s interests, but not less than sufficient coverage
and limits of liability.
(xiii) To establish and maintain
accurate and complete books of account with proper entries of
all receipts, income and disbursements pertaining to the
Premises, which books of account shall be and remain the.
property of the Owners and shall be available to any Owner.
and his or her representative for inspection, and to prepare
annual financial reports for the Owners.
(c ) Advances by Manager . Payzaents to be made
by the Manager at the Owners' expense shaii be mauc oLLt of
funds held by the Manager from time to time fQr"the account
a by ~h€ Dwner s . mhe
of the Owfl~rs 6r 6ther"w:i5e provideu
Manager shall not be obligated to make any advance to or for
the accQUnt of the Owners or to pay any amount except out of
funds held for or provided by the Dwners. If the Manager
voluntarily advances funds for the Owners' account for the
+he D~,Tners ~ pr; o,-
payment of afiy expense not requiring 4
approval, the owners shall reimburse the Manager therefor on
domand;
(d) Bank Accounts. P.11 monies received by
the Manager for or on behalf of the Owners shall be deposited
in a special account to be maintained by the Manager with a
bank appro`~'°d ~~1' ±he O~Jr.ers , The Manager shall remit to the
Owners monthly, on or before the fifteenth day of each month,
-~-
all funds (other than security deposits and other refundable
deposits) held by the Manager for the Owners' account and not
applied to the payment of the Owners' expenses as herein
provided, after (i) deduction of any management f ee due to
the Manager and (ii) retention in said special account of
such reserves as the -Owners may authorize. If security
deposits or other funds are required by law to be held in a
segregated account and are, by .law, allowed to be held by the
Manager, such deposits or funds shall be held in a separate
special account at such banY.. Monies held by the Manager for
the owners' account shall in no event be commingled with the
tiailagCr's owi, fiinci5, ii airy, 6r witri funds, :if any, held icy
the Manager for the accQUn± .cf other parties, anc~ all such
funds so held for the Owners' acceurt shall be t?-~,:st f'lnds in
tine hands of the Manager.
(e) Notwithstanding the foregoing, no Manager
(or owner) on behalf of the Owners, without the consent of
the OWI12r5, shall have any right or authority implied or
apparent:
(i) to sell or encumber the Premises or
any part thereof or any interest of an Owner therein ea:cept
as provided in Section 3 below;
(ii) to remove or demolish any buildings
or other improvements which comprase part of the Premises or
make any exterior alterations or structural interior
-6-
alterations to any improvements unless such be necessary for
clear safety reasons or in order to comply with governmental
requirements.
(iii) to to}~e any other action unless
the authority is specifically and expressly set forth rierein.
2. Allocation of Income and Expenses. Payments
hereunder shall be paid to the Owners in accordance with
their respective percentage interests in the Premises.
The Owners shall advance or cause to be
advanced, in accordance with their respective percentage
interests, funds from tl~e tD tlme as may be required tD pay
.for the maintenance and operation of the Premises, including
interest and pri_^.C~.pal on any loans, real estate taXeS,
insurance,. repairs, work ordered by public authorities and
for the cost of ar.y i mprovement thereon.. ~hDUld_ a=ny Q~-'??e=
far any reason fail or refuse to advance or cause to be
advanced his or her proper share of funds required, then, at
the option of the other owners, they shall have the right to
acquire tl-ie enure lnterast of such delinquent owner at fair
market value (defined below) or to Charge th4 delinque-~t
owner and to recover said sum plus any costs, including
attorney's fees, from such Owner (including from future
payments hereunder to which such Owner would Qther-wise be
entitled).
By execution hereof, each of the Owners hereby
transfers to such Manager his or her respective interest in
-7-
all of the receivables, and all other non-real estate assets
originally held by Kim Company, Harrisburg, Pennsvlvani a and
distributed in the aforesaid liquidation transaction as an
advance toward the funds requirement mentioned in the preceCino
paragraph (e>;cept for $272,617.95 being distributed to the
individual Owners in lieu of Union Quarries, Inc, stock, which
amount shall be held by Manager for distribution to them in 1987).
3,. No Partition• Restrictions on Alienation•
Option at Death.
{a} No Owner shall .seek to have the Premises
partitioned.
(b)~ Except as hereinafter provided in this
Section, no Owner shall dispose of, sell, transfer, assicrn.
convey, mortgage, pledge, grant a security interest in,
hypothecate or encumber part or al 1 of his or her undivided
interest in the Premises without the prior consent of the
Owners and any such transaction purported to be accomplished
contrary to the provisions hereof shall be absolutely vai.d.
An p~;r;-nor *~41T .^.C:1V~y (bi' :;~Y' Of s~l~ 1ft C
y r
otherwise) part or all of such Owner's interest in the
Premises only if he or she first notifies the other Owners of
the intention so to proceed and gives the other owners the
first right Lo purchase the portion of the interest of such
Owner in the Premises sought to be conveyed ("offered
Interest") (i) at the purchase price and upon the other terms
-B-
of sale offered or.proposed to be offered, or intended to be
accepted by such Owner if the proposed conveyance is a sale
to a third party or (ii) the fair market value of the
interest (as defined in this paragraph below) if the proposed
conveyance is a gift (in whole or in part).
Upon receipt of a notice of intent to transfer .and
convey any interest in the Premises ("Transfer Notice") from
. ..
an owner ("Offeror"), the owners recelving same ("Offerees")
shall have a period of 60 days within which to accept or
reject the same by notice in writing to thie Offeror; and
failure to give notice of acceptance or rejection shall be
deemed to be a rejection of the offer reflected by the
Transfer Notice. In the case where the price to be paid .for
the i ~toract i ~ t~1e fair War et v lue ti:°_=eD'F, the 'Tr~nefc?r
Notice shall be acco~r~par.ied by a °~Tritten appraisal thereof
dated within 90 days of the date of the Transfer Notice,
prepared by a person who is a duly qualified appraiser doing
business in the area of the Premises.
If the Offerees receive a Transfer Notice
?rL~~??lpai"Iied hV ?T1 appraical aT1f~ LliC}1 to ?r_rPp'r t}lt? C~f'~Pl' but
are not satisfied with the purchase price which would be
required to be paid based on such appraisal, the Offerees may
conditionally accept the offer contingent upon obtaining a
satisfactory alternate appraisal to be provided by th e
Offerees to the Offeror within 45 days after the Offerees
-9-
have acce ted the offer effected in the
condit~.onally P y
Transfer Notice; and if the Offerees do so submit an
eriod (by a duly
alternate appraisal within such 45-day p
al ified appraiser doing business in the area) the purchase
rice to be paid by the Offerees shall be the average of t e
P raisal is not greater
1 raisals, provided the higher app-
~wo aPP
110 of the lower appraisal. If the higher appraisal is
than
raisal, the two
more than 10~ higher than the lower app
' prs shall promptly select a third appraiser, and the
appra15~
fair market value shall be the average of the two appraisals.
closest in value. If the Offerees do not submit an alternate
1,,, ~c~.7 ->,: .'' .7 Cffnra°s cha 11 hA
~ppraisai w ithiii s iicu ~ ~ unY p==,i0u ~ th ~
oonod to have revoked the acceptance of the offer stated in
d..~ a 5-day
wi+~hin such
r r? t:.ce Lnl o=~ the pfferaes
the Transfer o'
i that the
period yive~notice to the Offeror in wr-ting
P
t rest in th°
r ees are prepared to purchase the zn
Offer .
premises on the basis stated in the Transfer Notice and at
the purchase price determined from the appraisal which
accompan:.ed it '
~~ ~r:;hether
Within 90 days cif tii~ ^viiez'ees' accep~ance ,
conditional or unconditional) of an offer reflected in a
Transfer Notice (or if further appraisals are involved and
the fair market value to be established thereby has not been
resolved within such 90-day period, then within 15 cats
1 •~' a the determination of such value and the resultant
fol_o~~n,
purchase price), the sale of the. interest in the Prem~.ses
-10-
shall be consummated. At such time the interest in the
Premises shall be transferred and conveyed to the off erees by
deed in form satisfactory to the Offerees' counsel or title
insurer, and the purchase price shall be p-aid by the Offerees
on condition that the title and interest being transferred is
free and clear of all liens, encumbrances, easements and
other matters affecting title (other than those which
affected title upon the acquisition: of title by -the Owners or
those agreed to by the Owners) except those acceptable to the
int°_rest is so insurable at regular
Offe,-ees and that th...
rates by a title company approved by the Off erees, as good
and marketable, at the expense of the OffereBS, Realty
~.,.,- a niid e}:~ciiScS aS a.r c
har s
tr ans f ~r tPix eS Mild atlici c y -'
ustomarily apportioned and adjusted between seller and buyer
c
shall be apportioned and adjusted between the Parties as of
the date oz closing.
If the other Owners do not e}:ercise their option
within the time provided the Offered Interest, the Offeror
ruay convey such interest as proposed in the Transfer ivotice,
if the person(s) to whom such interest is proposed to be
transferred agrees in writing to be subject to all of the
terms of this Agreement with the same force and effect as if
such person(s) had owned such interest at the time of the
execution of this Agreement and had signed this Agreement as
an Owner.
-11-
of an Owner, the other
(d) Upon the death
all have the right to purchase the entire interest
owners sh
eceased owner in the Premises for fair market v clue
of the d
fined below) within six months of the death of such
(as def
deceased Owner.
overall management
Owners. General,
4. Action b
all matters arising out of or in
of the Premises and of a sale or mortgage of
connection with the Premises, including
Premises or any part thereof, shall be vested in
the entire abide by the policies
the owners jointly and each owner shall
a reeme-~t, approval ,
and decisions in respect thereof. AnY q`
consent, requ°st or other action of the Owners
decis1Oo,- hall b°- b~ m=7or"ty (`n Interest) vc±e ar.d ~n
hereund-_ .-
writing unless otherW15e indicated.
Z'ab lity; Indemnit NQ Owner (or Manager,
5• , ~ other
i also an Dwner) Shall be liable to any
if he or she s
~}~en or
er -for anY mista}-e of judgment or other action t_
Own regiment
ted in good faith. Anti' Owner who breaches this Ag
om1t mss from anY
other Owner harTril"
shall indemnify gild hold every reason of
~ .m cost, eypense, loss or liability incurred by
c_a1 f
such Owner's breach of this Agreement.
dispute with
6. Arbitration. If there is anY
concerning the
other matter
respect to the premises or anY
s and obligations among
Premises or the proper relationship
as co-tenants or parties to this Agreement, such
the owners
-12-
. 's ute at the option of any Owner shall be conclusively
di p
ved by arbitration before a single arbitrator in Dauphin
resol
Pennsylvania in accordance with the rules of the
County, ,-esultin
The decision `~
American Arbitration Association• on all the Owners with
from the arbitration shall be binding er tribunal, and any
no rights of appeal tO a court or any oth
. ~ a enforce the decision of the arbitrator in a court
owner m Y
of competent jurisdiction.
~ • Judrn¶?1e_
In the event a judgment is entered
(a) r'-s to be a ~ ien ~g~~ nst '~1~e
~ 7 a i n ct an (~~,tr~er calf i c~h purpo- ~-
r such owner's interest therein, he or she will
premises °
immediately satisfy .the judgment or enter a bond in
suY f iciest ari6urit 6r take such other actlofl as is fiecessary
ainst the Premises.
to preclude execution on said judgment ag
such action to}•en by Owner shall be solely for the
Any ri hts
benefit of the other owners, and shall not affect any g
oz remedies which such Owner may hate against the person
holding such ]'sd~ent.
(b) Notwithstanding the forego~.ng, in the
eat that execution on such judgment is not thus precluded
ev
'thin 30 days of the judgment having been entered or on the
wi
CG1llllle llG Cllle llt Gf aiiy action recj,ar~i i15 C3 ex~~u ti6r7 On t7ie
rl pr then the D`~her Owners have
judgment, whichever is ea__i.- ,
the right to bond or satisfy the judgment and obtain
-13-
forthwith from the party against whom the judgment k=as
entered without prejudice to any owner's right to contest the
judgment a deed fcr such party's undivided interest in the
Premises in e~;change for which such other Owners shall pay
the fair mar}let value of such interest; and any amount paid
to satisfy the judgment plus legal expenses and all costs
incident thereto shall be credited against such amount.
B. Termination. This Agreement shall terminate
on the sale or other disposition of all of the Premises and
the distribution to the Owners of all of the net proceeds
thereof, or at such other time as the Owners may agree.
9.. Binding Effect; Effect on Transferee, This
Agreement contains the entire understanding among the owners
with respect to the p_e_~ise_ and may not be changed or
modified orally. This Agreement shall inure to the benefit
of and shall be binding upon the heirs, personal
representatives and permitted assigns of the Owners.
Whenever any person acquires any interest in the Premises
upon the de~~th of an Ow;,er ~r otherwise, other than pursuant
to a sale, lease, pledge or other disposition of the interest
of all owners in a tract or parcel constituting a part of the
Premises, such interest so acquired shall be subject to all
of the terms of this Agreement with the same force and effect
as if such person had owned such interest at the time of the
execution or thi s ngreer„e-,t ar~d had signed this Agreement as
-14-
^ caner. However, this Agreement shall not be recorded by
an O
any Owner without the consent of the Owners.
10. Fair Mar}:et Value of An Interest• Ot~tions.
For purposes of this Agreement:
(a) The fair marY.et value of an Dwrer's
interest in the Premises or any part thereof shall equal the
ercentage of the fair market value of the entire Prem?Se5 0,-
P
such part thereof corresponding to his percentage Yinterest
therein. The fair market value of the Premises of such part
thereof shall be as the parties to the pertinent transaction
~,. ne on such value, the
may agPPe. If such parries cannot agr.-
fair u~arket value of the Preniis.es or such part thereof shall
be dete?~nin.ed by a qualified appraiser selected by such _
-aiser, by
_. artier car_not ?g?-ee on an aPF-
p~.~.'i"'t~oS ~ Or i f ~t~ch p
a qualified appraiser selected by the then Chairman of the
Lewis &
personal Law Section of the law firm of Morgan'
$DC}:luS. The fair market value fixed by such appraiser shall
be final and bindwng Qn all parties= The fees and expenses
ally among all parties
of an appPaisal snail be d1vlced equ
' volved in the transaction (without regard t° theix
In
percentage interests).
(b) An option e>:ercisable by more than one
Owner shall be e5:ercised, by the Owners who choose to
anticipate, in the proportion their respective percentage
P
-15-
interests in the Premises at the time of the exercise of the
option bears to the percentage interests of all Owners who
choose to participate, unless they otherwise _agree.
11. Execution of Carve-Out A regiments. Eacri Owner
shall, promptly following the request of a majority (in
interest) of the Owners, execute an agreement among the
of this Agreement, with
Owners ,_ in substantially the form
respect to any one or more tracts or parcels constituting a.
rgigiment
part of the Premises, and such amendments to this Ag.
as shall be necessary to cause the Parties' agreements with
respect to such tracts or parcels to be governed by such
replacement agreement and not by this Agreement.
.-~-; 'o clot intend to
hTc Part shin. The pal_ ~_es a
12. `ner
partnp,-shi p or joint venture between
create hereby any
themselves with respect to the Premises or any other mat ter .
This Agreement is solely f or the benefit of the Owners and
shall not affect any rights or remedies of other parties with
v1%T 111 Vl Vll~ F1 ~1Lllj=s•
p~ + tv ~iiiy
r~s c~
13, Not_ ces. Ali notices or other communications
required under or relating to this Agreement shall be
effective only if in writing, and shall be personally
delivered ox transmitted by telegram or telex, or shall be
mailed United States registered or certified mail, return
receipt recTUeSted., postage Prepaid, to the Qther respective
arty at his or her address below set forth, or at such other
P
-15-
address as such other party shall designate by notice, and
shall be effective when delivered to such address. Any
official U.S. Postal Service delivery receipt shall
constitute conclusive proof of such delivery.
14. Further Assurances. Each Owner shall,
promptly following the request of the Owners from time to
time execute, acknowledge, deliver and record or file such
Further documents or instruments and do such further acts as
.may be necessary or desirable to carry out more effectively
the purposes of this Agreement or to protect the rights and
interests of the Owners against third parties, and pay any
costs personally incurred in connection therewith. If any
Owner shat l refuse er ot}?erwi se fai 1 t0 ex?CUte any deed or
other instrument necessary or desirable to carry out any of
the purposes under this Agreement or to effectuate a decision
VL Ll]e VW]1CLa L11~LCLL]1LL C1 W1 Lll LGJiJ el:4 4V 1.11e S'L CII1LDeS, Ur Ll!]y
part thereof, the ®ther Owners shall be entitled to specific
performance of the obligation to execute such deed or other
+,~,,.... ~ ding i ii W h i c h
t~ •L •~• F VCeC
Lnstr ume!!t togs L•L1CL R 1 l-h all cUj L.7 0l 6-1 ~ YL
SLCh SpeCi fiC perfQrma?~r~e i c nl~tair~arj and roaSOnabl° ro'..tnSel
fees expended therefor. As further assurance of the
foregoing obligation, each Owner hereby names .each of .the
other owners, with full power of substitution, as his, her,
6r its attDrn~y-ifi-faC~. coupled with an interest tD execute
any such deed or other instrument to carry out any of the
purposes of this agreement or to effectuate a decision of the
-17-
and on behalf of such
rs thereunder, in the name of
owne To facilitate the
refusing or otherwise failing owner.
the
such deed Dr other instrument, each of
reCO-rding of any as escrow
has executed and delivered to the Manager,
with respect to
Owners
recordable orm
agent, a Power of attorney in Owners and
remises conveyed into the names °f the
the P
contemplated by this Agreement.
all issues
Law. This Agreement and
15, Governing of the
shall be governed by the laws
arising hereunder
Co~pnwealth of Pennsylvania.
OF the parties hereto have caused
. IN WITNESS MERE and year
nts.to be duly signed and sealed the day
these Prese
first above written.
_~ g-
Percentage Interest
Llsa M. Morgan,~xecutrix )
Estate of Robert M. Mumma )
1065 Tilghman Court )
Wayne, PA 19087 j
Barbara McK. Mumma, Executrix )
Estate of Robert M.~Mumma j
P.O. Box 3331
Harrisburg; PA _ 17105 )
~~ ~
,---
z ~_ ~!'ff /'~
i~obert M . Mumma II
RD ~1 Box 58
Bomansdale, PA 17008
.~~ ~~-.-rte /i7
Barbera M. McClure
129 S. Lewisberry Road
Mechanicsburg, PA 17065
i iida M. Roth
16216 Pepperview Court
Chesterfield., MD 63017
...~~ Vii' fI "I~~zv~
~ '~.r ~
T•i~Sa M. Mcrg~, ~nuivluuolly
1065 'Tilghman Court
Wayne, PA 19087
:,
Barbara McK. Mumma, Indlvldually
P.O. Box 3331
Harrisburg, PA 17105
81.82507%
4.24708%
4 . Z3s5B%
4.23B55Q
~.23Bcc~
1.22120 0
100.00000%
-19-
~;
Mumma Realty Associates, Inc., a Pennsylvania
corporation, Manager under the foregoing Agreement ~..mong
Tenants-In-Common, hereby accepts, and intending to be
legally bound, agrees to act on behalf of the Owners in
accordance with the terms and conditions of-such Agreement.
MUMMA REALTY ASSOCIATES, INC.
By:
President
P.ttest:
Secretary
-20-
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Response of Barbara
M. Mumma in Opposition to Petition to Authorize Sale of Real Estate was served
by e-mail and by first-class United States mail, postage prepaid, this 21St day of
June, 2012 to the following:
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
No V. Otto, III, Esquire
George B. Faller, Esquire
Jennifer L. Spears, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Brady L. Green, Esquire
Morgan, Lewis & Bockius, LLP
1701 Market Street
Philadelphia, PA 19103-2921
Jeffrey G. Brooks, Esquire
Minto Law Group, LLC
603 Stanwix Street, Suite 2025
Pittsburgh, PA 15222
Ms. Linda M. Mumma,
P.O. Box 30436
Bethesda, MD 29.&?~l
Richard F. Rinaldo
Counsel for Barbara M. Mumma
-13-
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