HomeMy WebLinkAbout06-22-12 (2)~;rr r °~ `,, ~ f n
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Jeffrey G. Brooks
Pa. I.D. No. 43654 ~i? ,~{1``~ ~~ C`~ ~:
Minto Law Group, LLC
Two Gateway Center y~,~.-~ ;~~ -
~';~
803 Stanwix Street, Suite 2025 ,
C ~~Ft~~;,r`i'~; r~:(~~c i
Pittsburgh, PA 15222 CUMB~RLAiv~ G~., PA
(412) 201-5525 phone
Attorney for Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
In re:
Estate of Robert M. Mumma, Deceased.
No. 21-86-398
RESPONSE OF ROBERT M. MOMMA, II
TO RULE TO SHOW CAUSE AS TO PROPOSED SALE OF LAND
As directed by the Court's Order dated June 7, 2012, Robert M. Mumma, II, ("RMM, II"),
by his undersigned counsel, hereby responds to the Court's Rule to Show Cause as
follows:
ANSWER
1. The allegations of paragraph 1 are admitted only to the extent that the
Petitioner appears to have attached a true and correct copy of her prior Petition to
Authorize Plan of Liquidation as an exhibit to the present Petition. In response to this
paragraph 1 RMM, II, incorporates by reference his Response dated April 26, 2012, filed
of record in this Court. The allegations, expressed or implied, that any property owned
by Mumma Realty Associates I is subject to the jurisdiction of the Court is denied for the
reasons set forth in the accompanying New Matter.
2. The allegations of paragraph 2 are denied as stated except to admit
Petitioner continues to refer to herself as "the sole Trustee of the Residuary Trust"
notwithstanding the death of Petitioner's and RMM, II' mother in July 2010. As stated in
the April 26, 2012 Response (¶¶6-10 upon the death of parties' mother, both the Marital
Trust and the Residuary Trust were deemed to have terminated and all assets "as then
constituted" of such trusts were to have been distributed to the surviving children of
Robert Mumma, Sr. "as then constituted." Respondent, by addressing the Petition and
purported capacities of the Petitioner, does not waive any contention that the subject
Trusts should be deemed terminated.
3. The allegations of paragraph 3 are admitted excepting that, as stated in the
April 26, 2012 Response, the assets of neither trust have yet been distributed to the
beneficiaries of Robert Mumma, Sr. Any allegation, expressed or implied that either that
the Marital Trust and the Residuary Trust properly remains in existence is denied for the
reason that, under the express terms of the Last Will and Testament of Robert Mumma,
Sr., Deceased, both Trusts are terminated and their assets distributed to all beneficiaries
upon the death of Barbara McKimmie Mumma in July 2010.
4. The allegations of paragraph 4 are denied as stated for the reasons set
forth in the April 26, 2012 Response, which Response is incorporated herein by
reference. Further, the allegations are denied for the reason that, upon the death of
Barbara McKimmie Mumma, all assets of the Residuary Trust were have been
distributed to RMM,II, Linda Mumma, Barbara Mumma and Lisa Morgan as provided in
the Last Will and Testament of Robert Mumma, Sr.
5. The allegations of paragraph 5 are denied for the reasons set forth in
response of paragraph 4 hereof except to admit that the Owner of the subject real estate
is Mumma Realty Associates, I.
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6. The allegations of paragraph 6 are denied as stated except to admit that
Petitioner also was named as executrix of the estate of her mother, Barbara MclCimmie
Mumma. The allegation that Petitioner is "sole shareholder" of MRA, I is denied. Is
contrary, the shareholders and beneficiaries of that entity are the same individuals who
comprise the beneficiaries of the Estate of Robert Mumma, Sr., Deceased. Further, any
allegation, expressed or implied that MRA, I is subject to the jurisdiction of this Court is
denied for the reasons set forth in the accompanying in the New Matter.
7. The allegations of paragraph 7 are admitted only to the extent to
acknowledge that the Petitioner made the representation as described in that paragraph,
however, the allegations, express or implied, that this Court has jurisdiction or that
Petitioner has standing to seek the intervention of this Court in directing the sale of any
assets owned by MRA, I are denied for the reason set forth in the accompanying New
Matter.
8. The allegations of paragraph 8 are admitted only to the extent that
Petitioner appears to desire to sell real estate not owned by her or the Residuary Trust of
which she purports to remain as Trustee. The allegations regarding the particulars of the
contemplated sale are denied as stated for the reason, after reasonable investigation,
RMM,II his knowledge information sufficient to form a belief as to the truth there of. The
balance of the allegations of paragraph 8 state conclusions to law that no response is
required. Further, the proposed Agreement for Purchase and Sale attached as Exhibit
"B" to the Petition purports to contemplate a sale of all ownership interest in the property
notwithstanding that the Agreement of Sale does not identify as parties nor reflect the
consent of the Owners of MRA, I.
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9. The allegations of paragraph 9 state conclusions to law that no response is
required and accordingly being denied.
WHEREFORE, the premises set forth above (and in the accompanying New
Matter) the Petition to Authorize Sale of Real Estate should be denied.
NEW MATTER
A. This Court Lacks Jurisdiction To Direct The Sale Of Subject Property.
1. As a<,knowledged in the Petition, the subject property is not owned by the
Estate of Robert M. Mumma, Deceased, or by the Residuary Trust, but by Mumma
Realty Associates, I. MRA, I is not before this Court as a party or otherwise subject to its
jurisdiction as to disposition of its assets.
2. In addition, the Mumma Real Estate Associates Agreement Among
Tenants-In-Common (a true and correct copy which is attached hereto as Exhibit "A")
provides that, "If there is any dispute with respect to" the real estate owned by MRA, I
any "Owner" (including each of the four children of Robert Mumma, Sr. in their individual
capacities) have the right to direct that such dispute "be conclusively resolved by
arbitration before a single arbitrator in Dauphin County, Pennsylvania in accordance with
the rules of the American Arbitration Association." (Exhibit "A," ¶6).
3. Pennsylvania Courts have long recognized, and diligently will seek to
enforce, private arbitration agreements' where, as here, the parties have agreed to
See, e.g., Pittsburgh Logistics Systems, lnc. v Professional Transportation and
Logistics, Inc., 803 A.2d 776 (Pa. Super. 2002) "where a dispute arises between parties
to a contract concerning the contract and the contract contains an unlimited
concentration clause, the parties must resolve their dispute through arbitration" citing
Ambridge Borough Water Authority v Columbia, 322 A.2d 498, 501-502 (Pa. 1974).
Here, the arbitration clause is unqualified in that it provides for arbitration of "any dispute
with respect to the Premises" or "any other matter concerning the Premises." (Exhibit A
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submit the disputes to private arbitration, the jurisdiction of a court is limited solely to
directing that such arbitration be conducted as provided by the parties' agreement.
B. The Petition To Authorize Sale Of The Subject Real Estate Is Not In The Best
Interests Of The Beneficiaries.
4. The Petition ignores and makes no reference whatsoever to the fact that
MRA, I owns the subject parcel, and that an additional parcel of approximately sixty-one
(61) acres bordering that property is owned an entity, Bobali Corporation, the
shareholders of which include the Trust beneficiaries, i.e., the individual MRA, I Owners.
The sixty-one (61) acre parcel is identified as Property No. 4 on the Summary of
Appraisals attached as Exhibit "A" to the Petition ("Property 4.").
5. RMM, II confirms that the access to the Property 4 is best served via the
subject real estate. The only existing road opening fronting on Property 4 provides
access inferior to that provided by the subject parcel. Attached hereto as Exhibit "B" is a
satellite aerial depiction of Property 4.2 As the attached photograph demonstrates,
although Property 4 is interspersed with what appear to be dirt bike motorcycle and/or
ATV trails, no paved roadways communicate to or within Property 4. Property 4 fronts
orgy on the divided highway known as Gibson Boulevard.
6. Further, because of its location, size and the layout of adjacent roadways,
severance from MRA, I's properties of the subject parcel will severely limit if not preclude
further subdivision of Property 4 absent the formation "private roads" or similar
at ¶ 7) See also Astuce v L.W. Molnar & Associates, 10 A.3d 1230 (Pa. 2011) "Trial
courts lack authority to terminate an ongoing common law arbitration proceeding
conducted pursuant to the party's contractual agreement."
2 Source: maps.google.com/maps
enter.• 40.245631,-76.846812
5
easements connecting any subdivided portion of that parcel to the balance of Property 4,
which additional and new roadway accesses would severely limit development or
subdivision possibilities for Property 4.
7. In addition, the access to Property 4 that is located on an inconvenient
section of divided highway which precludes direct access for any west bound traffic.
8. Further illustrating that inferior access to Property 4 will be a necessary
consequence of a sale of the subject property, is that the Property 4 access off of Gibson
Boulevard involves a significant difference of elevation thereby making that access vastly
more difficult to negotiate than is the case of access to Property 4 via the subject
property.
C. The Record In This Action Does Not Establish That Petitioner Is Capable Of
Conveying 100% Fee Simple Title Absent The Consent Of All Owners Of
MRA, I
9. The Petition itself admits that the Residuary Trust owns 81.8257 percent
interest in the MRA, (tenancy-in-common. (Petition ¶ 4). The individual Mumma family
members own an aggregate 16.9422 percent of the interest with the Estate of Barbara
McKimmie Mumma owning the balance of 1.2212 percent interest of MRA, I.
10. The Petition is silent regarding Petitioner's purported power to act absent
the consent of each and every Owner of MRA, I. The proposed sate agreement lists only
the Residuary Trust of Robert M. Mumma, Sr., the Estate of Barbara McKimmie Mumma
and Lisa M. Morgan, individually, as the holders of interests in MRA, I, and does not
identify or even imply that Babs Mumma, RMM, II and Linda M. Mumma also hold
undivided interests in MRA, I.
D. The Petitioner Has Not Fully Explored All Options For The Subject Property
As To Its Potential To Generate Income
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11. The subject parcel apparently is desired by the contemplated purchaser to
serve as a parking lot for the immediately adjacent United Parcel Service store location.
Such purpose of the Buyer is described in the proposed Agreement for Purchase and
Sale as attached as Exhibit "B" to the petition at page 1 ¶D.
12. Such use of the subject property also could be provided to the proposed
buyer by means of a lease of the property, which would not necessitate a sale.
13. Such lease would convert the subject property into a revenue generator for
the benefit of the beneficiaries.
14. To the extent that the Petitioner continues to serve as trustee or holds
herself as trustee for the benefit of the beneficiaries, Petitioner is obliged to act only in
the best interest of the beneficiaries, which by this Reply, RMM, II states is a lease of the
subject property, not its sale. RMM, II's understanding is that all of his siblings (which the
exception of Petitioner) join him in stating a preference of continuing ownership of the
subject property by MRA, I. Its lease to the proposed buyer and not sale of that property
would accomplish that objective.
E. The Proposed Sale Violates The Terms Of .The Mumma Realty Associates
Agreement Among Tenants-In-Common
15. Petitioner admits that the subject property is owned by MRA, I and that the
Residuary Trust's interest is a partial interest.
16. The MRA, I's provisions regarding transfer of the property absent consent
of all Owners are contained in paragraphs 1 and 3. Paragraph 1(e)(i) states as follows:
(e) Notwithstanding the foregoing, no Manager (or Owner) on
behalf of the Owners, without the consent of the Owners, shall have
any right or authority implied or apparent: (i) to sell or encumber the
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Premises or any part thereof or any interest of an Owner except as
provided in Section 3 below. s
17. Pursuant to paragraph 3(b) of the MRA, I Agreement, "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 purporting to be
accomplished contrary to the provisions hereof shall be absolutely void."
18. Accordingly, by its simple, clear and express terms, all of the Owners of
MRA, I agreed, and held themselves bound, that no one Owner (regardless of quantity of
supposed ownership share or interest) may convey any property owned by MRA, I
absent the consent of all Owners. To the extent any Owner seeks to sell or petition any
of MRA, I's properties, such prospective seller is obligated under the MRA, I Agreement
to first offer to transfer his or her interest to the other Owners.
19. The proposed sale of the subject property, absent the consent of all
Owners, is in direct violation and breach of the MRA, I Agreement. Indeed, by her
execution of the proposed Agreement for Purchase and Sale attached as Exhibit "B" to
the Petition, Petitioner already is in breach of the MRA, I Agreement.
20. The MRA, I Agreement clearly states (at ¶ 3(b)) that "any such [transfer]
transaction purported to be accomplished contrary to the provisions hereof shall be
absolutely void"
3 Because the contemplated sale involved the interest of other Owners, the MRA, 1's
transfer provisions of paragraphs 1 and 3 control in the instant case and the provisions of
paragraph 4 have no application.
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21. Because Petitioner did not acknowledge the other Owners' first refusal
rights, failed to obtain those Owners' consent, or otherwise abide the MRA, I Agreement,
the proposed sales agreement is "absolutely void."
22. The Petitioner did not notify the other Owners of the proposed sale or
extend to them the Owners' rights of first refusal prior to entering into the proposed
Agreement for Purchase and Sale attached as Exhibit "B" to the Petition.
23. Under the MRA, I Agreement, if a tenant desires to sell that tenant's
undivided interest in MRA, I property, that tenant must give notice to the other Owners,
offer the property to those other Owners then "shall have a period of 60 days within
which to accept or reject the same." (Exhibit A at ¶ 3(b)(p. 9)). No such notice or offer
has been extended to any of the other Owners; accordingly, the 60 day period has not
yet commenced.
24. Petitioner offers no evidence of any notification of the proposed sale to the
Owners of the terms and conditions of sale.
25. To the extent Petitioner seeks to act in a fiduciary capacity either in her
purported role as Trustee of either the Marital Trust or the Residuary Trust or as
manager of MRA, I, the Petitioner is obliged to explore all potential options relating to
MKA, I's properties (accepting, arguendo, that Petitioner has any right to seek this
Court's direction to sell property of MRA, I) to explore all proposals or options seeking to
exploit the highest and best use of the property and to formally notify each Owner of all
terms and conditions of a third party sale. Petitioner failed to abide her obligations in this
regard.
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26. In addition, to the extent that Petitioner seeks to sell the subject property in
order 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 alternatives available to
provide sufficient liquid revenue to satisfy such obligations.
WHEREFORE, the Petition to Authorize Sale of Real Estate should be denied.
Dated: June 21, 2012
J e rooks
a. I.D. No. 43654
Minto Law Group, LLC
Two Gateway Center
603 Stanwix Street, Suite 2025
Pittsburgh, PA 15222
(412) 201-5525 phone
Attorney for Robert M. Mumma, II
10
?~,T_REAL Y ASSDCIATES
AGREEM 11T AMONG TENANTS-IN-COMMON
AGREEMENT made as of the 19th day of December, 1986
by and among the persons whose signatures appear at the end
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 Associates,
having originally been owned by IGim Company, a Pennsylvania
corporation, by its joint deed of Kim Company and
Pennsylvania Supply Company, Harrisburg, Pennsylvania, dated
December 19, 1986, in connection with the liquidation of said
corporations and recorded as set forth in Annex A hereto
(hereinafter called the nPremises"),.as tenants-in-common,
with undivided percentage interests therein presently as set
forth on the signature page hereof, and wish to enter into
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 as follows:
EXHIBIT A
r
1. A ointment of Mana er• Authorit .
(a) The Owners shall select a person (or
persons) to act as agent for the Owners in the management of
the Premises as.hereinafter set forth, and such person(s)
upon acceptance of the terms and conditions of this Agreement
shall become manager hereunder (the "Manager"). Any Manager
may resign at any time. Any Manager may be removed by
agreement of the owners. The initial Manager shall be the
corporation having executed the last page hereof, indicating
its acceptance of the terms of this Agreement.
(b) The Manager shall have the following
duties, rights and authority, far and on behalf of the
owners:
(1) TG aLivcrti~c avallabl2 5paC2 ?n 'tile
Premises through the use of renting signs, plans, circulars
and other forms of advertising acceptable to the owners.
(ii} To rent space now or hereafter
becoming vacant to desirable tenants on terms and conditions
c at i cfa,rr±nrv to i_ho nc.,mor~ _
~1
(iii) To collect al l rents and other
income payable with respect to the Premises.
(iv) To institute legal actions or
proceedings for the collection of delinquent rents and other
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income from the Premises and for the dispossession of tenants
or other persons therefrom.
(v) To make or cause to be made all
necessary repairs to the Premises, to purchase all necessary
supplies and materials, and to do all other things necessary
to maintain the Premises in a clean, safe and orderly
condition and to ensure compliance with all federal, state
and local statutes, ordinances, rules and regulations
applicable to the operation of the Premises.
(vi) To contract for electricity, gas,
a .,,.. + ....,.,+,...,
fii81 oil, water, `~-elepiion2, wlnuvw cl=8riing, p2S~ ~...Vi1~...YV1 an
such other services as shall be necessary and advisable for
*_he prover operatior! of the premises .
r
(vii) To perform all other services
reasonably necessary for the care, protection, maintenance
and operation of the Premises and the prevention of waste,
damage or injury thereto.
(viii) To hire, discharge and supervise
all persons employed to carry out Manager's duties hereunder,
or to contract with any other entity for the furnishing of
such services. Any employee hired in the management of the
Premises shall be the employee of the Manager and not of the
owners.
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(ix) To prepare and file all forms for
unemployment insurance, withholding taxes, social security
taxes, wor};.men'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
representatives for insp2cticn.
(yi) To review all bills and statements
received for services, worY,, supplies and other expenditures
incurred by or on behalf of the Owners in connection with the
maintenance, operation and ownership of the Premises and to
pay or cause to be paid in a timely fashion all a}:penses
authvri'+ed her ~~~inder or ~i,ppr v`v'~'d by the vi'.fnn`rc. .
(xii) To review periodically all hazard,
lic~.bility and other insurance carried for the account of the
owners in connection with the Premises and to maintain in
fGiCc and effect siiCii 11'iSUranCc CO'veraye as the N~anager
reasonably deems necessary to protect the owners' and the
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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. Payments to be made
by the Manager at the Owners' expense shall be made out of
finds held by the Manager from time to time for'the account
of the Owners or otherwise provided by the Owners. The
Manager shall not be obligated to make any advance to or for
the account of the Owners or to pay any amount except out of
funds held for or provided by the owners. If the Manager
voluntarily advances funds for the Owners' account for the
payment Of any eXpense ii'vt rey~llring the L~k'T]erS~ =r„r~pr
approval, the Owners shall reimburse the Manager therefor on
demand,
(d) Bank Accounts. All 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~.Ted by the Ot~ners. The Manager shall remit to the
Owners monthly, on or before the fifteenth day of each month,
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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 bank. Monies held by the Manager for
the owners' account shall in no event be commingled with the
ZSanager's own funds, if any, er with funds, if any, held by
the Manager for the account .of other parties, and all such
funds so held for the Owners' account shall be t?~.:st funds in
the hands of the Manager.
(e) Notwithstanding the foregoing, no Manager
(or Owner) on behalf of the owners, without the consent of
the Owners, shall have any right or authority implied or
aA~arent:
ti) to sell or encumber the Premises or
any part thereof or any interest of an Owner therein except
as provided in Section 3 below;
(ii) to remove or demolish any buildings
or other improvements which comprise 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 er_pressly set f orth herein.
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
;nyerests, funds from time Lo time as may be required to pay
for the maintenance and op°-ration cf the Premises, including
interest and prir~cj.pal on any loans, real estate taxes,
insurance, repairs, work ordered by public authorities and
for the cost of any improvement thereon. Should. any Owner
for 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 ot~*ners, t2'~ey shall have the right to
acquire the entire interest of such delinquent Owner at fair
market value (defined below) Qr to char°- t?;g ucl llll~u 0111
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 otherwise be
entitled).
By e~:ecution hereof , each of the Owners hereby
transfers to such :tanager his or her respective interest in
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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 preceCina
paragraph (except for $272,E17.95 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, 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 accomplished
contrary to the provisions hereof shall be abso~.utely void.
An 0c,*ner may convey (by way of sale, gift or
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 to 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
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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 receiving same ("offerees")
shall have a period of 60 days within which to accept or
reject the same by notice in writing to the 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
t}:o i;;teract ie tha fg~r r ar}:et Y3lue tti:ere^f, the Tr~n~for
Notice shall be accompanied by a 47ri tter. 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
acGOmpaniPd by Zn ap=nrai~al and s~ic1, to acCPpt ithg Offar 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 ~5 days after the Offerees
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conditionally have accepted the offer reflected in the
Transfer Notice; and if the Offerees do so submit an
alternate appraisal within such 95-day period {by a duly
qualified appraiser doing business in the area) the purchase
price to be paid by the Off erees shall be the average of the
two appraisals, provided the higher appraisal is not greater
than 110 of the lower appraisal. If the higher appraisal is
more than 10~ higher than the lower appraisal, the two
appraisers shall promptly select a third appraiser, and the
fair market value shall be the average of the two appraisals
closest in value. If the Offerees do not submit an alternate
,2ipj7rai5ai within such 4$°day t+crl~+d, the Offaronc ghal l hg
deemed to have revoked the acceptance of the offer stated in
the Transfer Notice unless the Offerees within such 45-day
period give 'notice to the Offeror in writing that the
Offerees are prepared to purchase the interest in the
Premises on the basis stated in the Transfer Notice and at
the purchase price determined from the appraisal which
acco:^panied it. .
Within 90 days of the Gfferees' acceptance {:.~hether
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 days
fallowing the determination of such value and the resultant
purchase price), the sale of the interest in the Premises
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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 paid 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
pf=e,-ees and that the interest is so insurable at regular
rates by a title company approved by the Offerees, as goon
and marketable, at the expense of the Offerees. Realty
transfer taxes and other charges and e~rersas as are
customarily apportioned and adjusted between seller and buyer
shall be apportioned and adjusted between the parties as of
the date of closing.
If the other Owners do not exercise their option
within the time provided the offered Interest, the Offeror
ray convey such interest as proposed in the Transfer ~votice,
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.
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(d) Upon the death of an Owner, the other
owners shall have the right to purchase the entire interest
of the deceased Owner in the Premises for fair market value
(as defined below) within six months of the death of such
deceased Owner.
q, Action by Owners. General, overall management
of the Premises and of all matters arising out of or in
connection with the Premises, including a sale or mortgage of
the entire Premises or any part thereof, shall be vested in
the Owners jointly and each Owner shall abide by the policies
and decisions in respect thereof. Any agreement, approval,
decision, consent, request or other action of the Owners
hereunder shall be by majority (in interest) vote and in
writing unless otherwise indicated. '
5. L~ab~lity; Indemnit No Owner (or Manager,
if he or she is also an owner) shall be liable to any other
Owner for any mistake of judgment or other action taken or
omitted in good faith. Any Owner who breaches this Agreement
shall indemnify a;,d hold every other Owner harmless from any
claim, cost, expense, loss or liability incurred by reason of
such Owner's breach of this Agreement.
6. Arbitration. If there is any dispute with
respect to the Premises or any other matter concerning the
Premises or the proper relationships and obligations among
the owners as co-tenants or parties to this Agreement, such
-12-
.
dispute at the option of any Owner shall be conclusively
resolved by arbitration before a single arbitrator in Dauphin
County, Pennsylvania in accordance with the rules of the
American Arbitration Association. The decision resulting
from the arbitration shall be binding on all the Owners with
no rights of appeal to a court or any other tribunal, and any
Owner may enforce the decision of the arbitrator in a court
of competent jurisdiction.
~ , Judcrments .
(a) In the event a judgment is entered
~~aiT!st an Owner which purports tQ be a lier_ against the
Premises or such Owner's interest therein, he or she will
immediately satisfy the judgment or enter a bond in
sufficient amount ar take such other action as is necessary
to preclude execution on said judgment against the Premises.
Any such action to}:en by Owner shall be solely for the
benefit of the other owners, and shall not affect any rights
ox- remedies which such Owner may have against the person
holding such judgment.
(b) Notwithstanding the foregoing, in the
event that execution on such judgment is not thus precluded
within 30 days of the judgment having been entered or on the
COiu7i,~nCBiDCr,t Gf ariy action regarding eXecutiol5 On tree
judgment, whichever is earlier, then the other Owners have
th° right to bond or satisfy the judc~nent and obtain
-13-
forthwith from the party against whom the judgment was
entered without prejudice to any Ovrner's right to contest the
judgment a deed for such party's undivided interest in the
Premises in e~:change for which such other Owners shall pay
the fair mar}:.et value of such interest; and any amount paid
to satisfy the judgment plus legal expenses and all costs
incident thereto shall b e credited against such amount.
g, mermination. 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.
~.. Bindin Effect Effect on Transferee. This
Agreement contains the entire understanding among the owners
with ?'eSpPeCt to the FrelL_sPC a.^.d maY nct be changed or
modified orzlly. This Agreement shall inure to the benefit
of and shall be binding upon the heirs, personal
representatives and permitted assigns of the Dwners.
Whenever any person acquires any interest in the Premises
upon the death of an Oaner or 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 forc e and effect
as if such person had owned such interest at the time of the
execution of this Agreerucnt and had signed this Agreement as
-14-
an Owner. However, this Agreement shall not be recorded by
any Owner without the consent of the Owners.
10. Fair MarYet Value of An Interest; Options.
For purposes of this Agreement:
(a) The fair marY.et value of an Owner's
interest in the Premises or any part thereof shall equal the
percentage of the fair market value of the entire Premises or
such part thereof corresponding to his percentage interest
therein. The fair market value of the Premises or such part
thereof shall be as the parties to the pertinent transaction
may agree. If such parties cannot agree on such value the _
fair market value of the Premises or such part thereof shall
be determined by a qualified appraiser selected by such _
parties, or if such parties Cannot agree on an appraiser, by
a qualified appraiser selected by the then Chairman of the
Personal Law Section of the law firm of Morgan, Lewis &
Bocl:ius . The fair market value f iced by such appraiser shall
be final and binding on all parties. The fees and expenses
of an appraisal shall be divided equally among all parties
involved in the transaction (without regard to their
percentage interests).
(b) An option e~:ercisable by more than one
Owner shall be exercised, by the Owners who choose to
participate, in the proportion their respective percentage
-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 Agreements. Each Owner
shall, promptly following the request of a majority (in
interest) of the owners, execute an agreement among the
Owners, in substantially the form of this Agreement, with
respect to any one or more tracts or parcels constituting a
part of the Premises, and such amendments to this Agreement
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.
12. No Partnershia. The parties do not intend to
create hereby any partnership or joint venture between
themselves with respect to the Premises or any other matter.
This Agreement is solely for the benefit of the Owners and
shall not affect any rights or remedies of other parties with
r cspBCt tv any v~r'nEr yr t7^ie Fr .iuiScs .
13, Noc,~ices. All notices or other communications
required under or relating to this Agreement shall be
effective only if in writing, and shall be personally
delivered or transmitted by telegram or telex, or shall be
mailed United States registered or certified mail, return
receipt reouested; postage prepaid, to the other respective
party at his or her address below set forth, or at such other
-16-
~ Owners thereunder, in the name of and on behalf of such
refusing or otherwise failing Owner. To facilitate the
recording of any such deed or other instrument, each of the
Owners has executed and delivered to the Manager, as escrow
agent, a power of attorney in recordable form with respect to
the Premises conveyed into the names of the Owners and
contemplated by this Agreement.
15. Governing Law. This Agreement and all issues
arising hereunder shall be governed by the laws of the
Commonwealth of Pennsylvania.
IN WITNESS WHEREOF the parties hereto have caused
these presents to be duly signed and sealed the day and year
first above written.
-1 $-
Percentage Interest
Lisa M. Morgan, Executrix )
Estate of Robert M. Mumma }
1065 Tilghman Court )
Wayne, PA 19087 )
/- ~ ~ )
~,•- - ~ - )
Barbara McK. Mumma, Executrix )
Estate of Robert M. - Mumma )
P.O. Box 3331 )
Harrisburg, PA 17105 )
~'
------
obert M. Mumma II
RD ~1 Sox 58
gomansdale, PA 17008
s •r_ %i7
Barbara M. McClure
12 9 S . i,ewisberry Road
Mechanicsburg, PA 17005
~~~ "- ,
Linda M. Roth
16216 Pepperview Court
Chesterfield, MO 63017
~,:~~ ~i~ ~~~~ J
Lisa M. Mogan, ~ndiVidually
1.065 Tilghman CQUrt
Wayne, PA 19087 '
Barbara McK. Mumma, Individually
P.O. Box 3331
Harrisburg, PA 17105
81.825D-7%
4.24708%
4 .23555
4 , 23555%
x.23505%
1.221200
100.00000%
-19-
-~ ~ .
Mumma Realty Associates, Inc., a Pennsylvania
corporation, Manager under the foregoing Agreement Among
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 ,
Attest:
seczetary
-20-
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EXHIBIT B
''"
~~
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was
served by email and first-class United States mail, postage prepaid, as indicated on
June 21, 2012 upon 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 19403-2921
Richard F. Rinaldo, Esquire
Williams Coulson Johnson Lloyd Parker & Tedesco, LLC
One Gateway Center
Pittsburgh, PA 15222
Hand Deliver
Ms. Linda M. Mumma
P.O. Box 30436
Bethesda, MD 20824
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