HomeMy WebLinkAbout04-26-13 (3) ROBERT M. MUMMA, II
IF
BARBARA MANN MUMMA
LINDA MANN MUMMA
840 Market Street, Suite 33333
LeMoyne, PA 17043
717-448-1127 -_
Pro Se Petitioners
In the Z'-"0%"i-r6 f Coni>iio'n P 1 x of
IN RE: Cumberland County, Pennsylvania
Estate of Robert M. Mumma, Deceased
No. 21-86-398
Orphans' Court Division
JOINDER OF LINDA MANN MUMMA IN PETITION OF ROBERT M.
MUMMA II, BARBARA MANN MUMMA AND LINDA MUMMA ROTH FOR
ORDER ENJOINING LISA M. MORGAN, TRUSTEE, FROM CERTAIN
ACTIONS AS SHAREHOLDER OF HIGH SPEC, INC.
Petitioner Linda Mumma Roth hereby joins in the previously filed Petition Of
Robert M. Mumma II, Barbara Mann Mumma And Linda Mumma Roth For Order
Enjoining Lisa M. Morgan, Trustee, From Certain Actions As Shareholder Of High Spec,
Inc. ("Petition") and in support thereof states the following:
1. I am Linda Mann Mumma(a/k/a Linda Mann Roth), one of the three
A1rV1 7A.414-
Petitioners named in the Petition,A true and correct copy of which is attached hereto.
2. I do hereby join__`L. _'_'__a__:___.s and support the relief requested in the
Petition,' oa-.i.o L an
the, R
WHEREFORE, Petitioner Linda Mann Mumma request the Petition be granted,
alone with Cll 1+ +l+v o11Pf C P 11PC4P l t11P
Petitioner Linda Mann Mumma
Date: y. 26�C3
1
FAX
T0: Linda M. Mumma
From: RMMII 717 448 1127
Faxed to: Fed EX 703 356 1171
CERTIFICATE OF SERVICE
I, Robert M. Mumma, II, hereby certify that a copy of the foregoing Joinder of
Linda Mann Mumma was served on this date via hand delivery at the office of No V.
Otto, III, Esquire, counsel for Lisa M. Morgan as Executrix and Trustee of the Estate, at
the address listed below, and will be served on this date, on the following via first class
mail, postage prepaid, and by such other means as directed by the Court:
Jeffrey G. Brooks, Esquire Richard F. Rinaldo, Esquire
Minto Law Group, LLC Williams Coulson ,Johnson Lloyd
Two Gateway Center Parker & Tedesco, LLC
603 Stanwix Street, Suite 2025 One Gateway Center, 16th Floor
Pittsburgh, PA 15222 Pittsburgh, PA 15222
Ms. Linda M. Mumma Joseph D. Buckley, Esquire
P.O. Box 30436 1237 Holly Pike
Bethesda, Maryland 20824 Carlisle, PA 17013
No V. Otto, III, Esquire Brady Green, Esquire
Martson Law Offices Morgan Lewis & Bockius
10 East High Street 17 N. Second Street, 14th Floor
Carlisle, PA 17013 Harrisburg, PA 17101
Carr ,/ ,+
ROBERT M. MUMMA,11
DATE:
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ROBERT M. MUMMA, II
BARBARA MANN MUMMA
LINDA MANN MUMMA
840 Market Street, Suite 33333
LeMoyne, PA 17043
717-448-1127
Pro Se Petitioners
In the Court of Common Pleas of
IN RE: Cumberland County, Pennsylvania
Estate of Robert M. Mumma, Deceased
No. 21-86-398
Orphans' Court Division
PETITION OF ROBERT M. MUMMA II, BARBARA MANN MUMMA AND
LINDA MUMMA ROTH FOR ORDER ENJOINING
LISA M. MORGAN, TRUSTEE, FROM CERTAIN ACTIONS AS
SHAREHOLDER OF HIGH SPEC, INC.
Petitioners, Robert M. Mumma II ("Mumma II"), Barbara Mann Mumma and
Linda Mann Mumma ("Petitioners"), children of the decedent, Robert M. Mumma, Sr.,
and beneficiaries of his estate (captioned above, the "Estate"), including the Residuary
Trust established under Item SEVENTH of the Last Will and Testament ("'Will") of the
decedent, petition this Court,pro se, for an order enjoining Lisa M. Morgan, as Trustee of
the Trust, from certain actions as shareholder of High Spec, Inc. ("High Spec"), alleging
as follows:
1. Petitioners are three of the four children of the decedent, Robert M.
Mumma, Sr. ("Mumma I") and three of the four beneficiaries of the Residuary Trust
established under his Will, the fourth child and beneficiary being Lisa M. Morgan
"Morgan").
2. Morgan is also the Trustee of the Residuary Trust.
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3. Mumma I died on April 12, 1986, leaving his Will dated May 19, 1982
and a Codicil thereto, dated October 12, 1984, true and correct copies of which are
attached hereto as Exhibit"1."
4. The Will and Codicil were admitted to probate by Decree of the Register
of Wills June of 1986.
5. Morgan, along with the wife of Mumma I, Barbara McKimmie Mumma
(now deceased), served as Co-Executrices of the Estate and Co-Trustees of the Martial
Trust and Residuary Trust under the Will.
6. Barbara McKimmie Mumma died on July 17, 2010, leaving Morgan as the
sole Trustee of the Trusts.
7. In September, 2010, pursuant to Item FIFTEENTH of the Codicil to the
Will, Petitioner Barbara M. Mumma was appointed successor to Barbara McKimmie
Mumma as Co-Executrix of the Estate.
The Florida Litigation Concerning High Spec
8. At the time of his death, Mumma I owned 50% of the shares of High Spec,
the remaining 50% being owned then and now by Petitioner Mumma II.
9. In 1989, Lisa M. Morgan instituted suit in Martin County, Florida,
currently captioned Lisa M. Morgan, as Co-Executrix of the Estate of Robert M. Mumma
and as Trustee of the Residuary Trust under the Last Will of Robert M. Mumma and on
behalf of High Spec, Inc., a dissolved corporation, Plaintiffs v. Robert M. Mummer, II
and High Spec, Inc, a dissolved Florida corporation, Defendants, 19th Judicial Circuit,
Martin County, Florida,No. 89-503-CA (the "Florida Litigation").
1 As noted below,High Spec was not"a dissolved Florida corporation"at the time of institution of the
suit,but was ordered dissolved by the Florida Court based on the claims asserted by Morgan in the
in the Florida Litigation.
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10. Morgan's standing to institute the Florida Litigation was and is based
solely on her fiduciary capacity, initially as Co-Executrix of the Estate and now as
Trustee of the Residuary Trust, and alleged authority as such to claim the rights and
privileges of Mumma I as a 50% shareholder of High Spec.
11. High Spec was not"a dissolved Florida corporation" at the time of
institution of the Florida Litigation, but was ordered dissolved by the Florida Court based
on the claims asserted by Morgan in the in the Florida Litigation of a"deadlock" among
the shareholders.
12. The "deadlock" among shareholders was and is in fact the result of
disagreements between Morgan and Mumma II—a deadlock that, as set forth below—
will disappear as soon as the true, beneficial owners of the Mumma I shares, being the
residuary beneficiaries of the Estate and Residuary Trust, are allowed to exercise rightful
control over their vested, beneficial interests in High Spec.
Morgan's Misuse of Fiduciary Authority over Mumma I Shares in High Spec
13. The Will of Mumma I set forth a simple and straightforward plan for the
disposition of the bulk of Mumma I's property: Following certain specific bequests in
Items Second through SIXTH of the Will that are not at issue here, the Will provided for
the equal division of the bulk of the Estate between the Marital Trust and Residuary
Trust, with the former providing for certain lifetime benefits to Mumma I's wife, Barbara
McKimmie Mumma, and the latter to hold the remaining half of the assets in trust for the
children—including Petitioners and Morgan.
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14. Both Trusts, moreover, expressly and unambiguously provide for the
distribution of all remaining principal of to the four children, "as it is then
constituted...share and share alike, per stirpes...."
15. Neither Item SEVENTH of the Will (Marital Trust) nor Item EIGHTH
(Residuary Trust) provides for any discretion or delay in the distribution of such property.
16. Moreover, both provisions, by commanding the property be paid over by
the Trustee "upon the death of my wife...as it is then constituted..." clearly and
unambiguously entitled the beneficiaries to receive the property as it was constituted
upon the death of Barbara McKimmie Mumma.
17. Despite these clear and unambiguous provisions commanding distribution
of the residual of the Estate and Trusts to the Petitioners upon the death of Barbara
McKimmie Mumma, "as it is then constituted...", Morgan, acting as the sole Trustee of
these now expired Trusts, continues to hold the bulk of the Estate, and exercise dominion
and control over such property, including the Mumma I shares in High Spec, for now two
full years after the death of Barbara McKimmie Mumma.
18. Not only does Morgan continue to hold and control this property, but she
has in this two years continued to engage in actions that materially alter the constitution
of the principal of the Estate and Trusts—the Florida Litigation being one, dramatic
example of this course of conduct.
19. Morgan, as sole remaining Trustee of the Residuary Trust, claims that
Mumma I's shares in High Spec are now property of the Residuary Trust.
20. Petitioners believe, and therefore aver, that legal title to the Mumma I
shares remain in the name of Mumma I, and have never been transferred to the Trust, and
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that accordingly, legal title to the Mumma I shares in High Spec. This is relevant
because, Petitioner Barbara Mann Mumma, as successor Co-Executrix of the Estate is,
vested with at least equal fiduciary right, title and interest, with Morgan, in the Mumma I
shares as property of the Estate and, even to the extent that any right, title or interest in
same has been or is to be vested in the Residuary Trust, Petitioner Barbara Mann
Mumma, as successor Co-Executrix of the Estate is, vested with the explicit authority,
upon the death of Barbara McKimmie Mumma, to distribute all such property, "as it is
then constituted...unto my children...share and share alike..." (Will, Item EIGHTH).
21. In any event, as set forth above, Morgan, as Trustee was and is obliged, as
of the death of Barbara McKimmie Mumma, to distribute the Mumma I shares to
Petitioners and herself, "as...then constituted...share and share alike..."
22. If there is any reason or basis for Morgan to delay distribution of such
property, the same provisions clearly and indefeasibly vest all beneficial interests in the
Mumma I shares in the beneficiaries, with the Trusts and the Estate holding at best bare
legal, nominal title as a fiduciary obliged to act for their benefit alone, and equity and
justice require the beneficiaries be allowed to exercise, directly or by instructions to their
fiduciary—be that Morgan, as Trustee, or Barbara Mann Mumma as successor Co-
Executor—all rights, privileges and benefits appurtenant to such shares.
23. In addition, and at the very least, the clear and unambiguous terms of the
Will, including Items SEVENTH and EIGHTH, above, require Morgan preserve the
Mumma I shares and not materially alter their present constitution, prior to their
distribution to the beneficiaries.
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The Immediate and Irreparable Harm to
Petitioners' Interests in the Mumma I Shares
by continuation of the Florida Litigation
24. The right of shareholders to participate in the governance of a corporation
through the exercise of voting rights is fundamental to their rights and benefits as a
shareholder.
25. The decision to terminate the existence of an active corporation
particularly a closely-held corporation owned (or intended to be owned) by members of a
family—is the most fundamental decision to be made by those entitled to govern a
corporate enterprise.
26. Morgan's continued pursuit of the Florida Litigation in the name of the
shareholders of High Spec and High Spec itself, and the ultimate objective of that
litigation to complete the dissolution, liquidation and wind up the affairs of High Spec,
thereby terminating it existence, prior to the distribution of the Mumma I shares to
Petitioners, is clearly contrary to the vested, beneficial rights and interests of Petitioners
in such shares and the command that such property be distributed "as...constituted..." on
July 17, 2010.
27. Indeed, Petitioners, upon recognition of their legal and equitable interests
in the Mumma I shares in High Spec, are each entitled to 25% of those shares, and will
thus own or control 87.5% of the total shares of High Spec: Mumma I will receive at
least 12.5% in addition to his current 50% interest, and the other Petitioners will receive
25% (12.5 % each).
28. As, Petitioners represent 87.5% of the true, beneficial and rightful owners
of High Spec and Morgan only 12.5%.
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29. As the true,just owners of 87.5% of the beneficial interests of High Spec,
Petitioners hereby declare that they are confident that they will be able to make the
decisions necessary to move forward with the election of directors and governance of
High Spec as an active corporate enterprise and unequivocally declare that they desire to
have the opportunity to do so, and reinstate High Spec as an active Florida corporation
before the Florida Court finally and irreversibly dissolves and terminates the corporation.
30. As the true,just owners of 87.5% of the beneficial interests of High Spec,
Petitioners hereby declare that they do not wish the Florida Litigation to continue, but are
inclined to see it dismissed, or at least that it not continue unless and until they are heard.
31. As the true,just owners of 87% of the beneficial interests of High Spec,
Petitioners are aware of no reason why the purported"deadlock" of shareholders of High
Spec would continue if they were allowed to exercise their rights as shareholders.
32. Based on the foregoing, Morgan's continued exercise of dominion and
control over the Mumma I shares of High Spec and High Spec itself, including her
continuation of the is a clear violation of her fiduciary obligations as Co-Executrix of the
Estate and Trustee of the Trust, including:
a. Her obligation to distribute the shares "as...constituted...share and share
alike" to Petitioners as of July 17, 2010;
b. Her obligation to preserve the shares "as...then constituted...";
c. Her obligation to assure that the rights and benefits of ownership of those
shares, including the right to vote the shares and otherwise participate in
corporate governance, and the right to claim standing as a shareholder of
the corporation or the corporation in the Florida Litigation, be used and
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exercised only in the Petitioner's interests and in accordance with their
desires.
33. Further, and given the unanimity of the Petitioners, as the true,just owners
of 87% of the beneficial interests of High Spec, that Morgan should not continue to
exercise such dominion and control over the Mumma I shares, her continued efforts to do
so and to proceed with the destruction of the substance of the tiling in which their
beneficial interests have vested—namely High Spec as a viable, active corporate
enterprise—can only be viewed as an effort to use her purported (and now expired)
fiduciary status as Trustee to perpetuate her control of the corporation for her own,
personal benefit and a clear conflict of interest, immediately disqualifying her as
fiduciary.
34. As set forth above, Petitioners are and will experience irreparable harm
by the continued violation of their rights to use and enjoy their beneficial interests in the
Mumma I shares due them, including:
a. The present and continuing deprivation of their fundamental rights to
control the voting interests in the shares due them and participate in the
governance of the corporation;
b. Their present and continuing interest in presenting their own position and
have their own vested interests as the true,just owners of 87% of the
beneficial interests of High Spec represented in the Florida Litigation; and
c. To prevent the final and irreversible loss of the very thing they are
supposed to own shares and participate in—that is, an active an viable
corporate entity
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35. The threat of irreparable harm is imminent and immediate in that, on April
8, 2013, counsel for Morgan in the Florida Litigation requested, and the Court scheduled,
a"final evidentiary hearing" in the case to take place, in Florida, on Monday, April 29,
2013.
36. Petitioner Mumma II, a pro se defendant in the case, received notice of the
scheduling of this "final evidentiary hearing" on April 29, 2013, after missing a "docket
call" in the Florida Court that he was unaware of until receipt of the April 8, 2013 letter.
37. Petitioners Barbara Mann Mumma and Linda Mann Mumma are not
parties in the Florida Litigation and have had no opportunity to be heard in that Court.
38. Petitioners intend to submit this Petition to the Florida Court to advise that
Court of the instant Petition, but believe that this Court should exercise its own
jurisdiction over Morgan and the Mumma I shares, to immediately enjoin he from the
continued misuse of her fiduciary authority.
39. This Petition is signed by Petitioners Mumma II and Barbara Mann.
Mumma, as the putative owners of 75% of the shares of High Spec. These Petitioners
were o not able to obtain the signature of Petitioner Linda Mann Mumma in time for
filing this Petition, but understand that she will sign a joinder I same and will secure that
at the earliest practicable moment.
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WHEREFORE, Petitioners request this Court issue a Rule to Show Cause with
temporary restraints, directing Lisa M. Morgan, as Co-Executrix and Trustee, to
immediately request the continuance of the Florida Litigation and cease all other actions
on behalf of High Spec or its shareholders to pursue that litigation or otherwise, pending
a further hearing before this Court.
Petitioner Barbara Mann Mumma
Date:
Petitioner Robert M. Mumma, II
Date:
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WHEREFORE, Petitioners request this Court issue a Rule to Show Cause with
temporary restraints, directing Lisa M. Morgan, as Co-Executrix and 'Trustee, to
immediately request the continuance of the Florida Litigation and cease all other actions
on behalf of High Spec or its shareholders to pursue that litigation or otherwise, pending
a further hearing before this Court.
Petitioner Barbara Mann Mumma
Date: y 2-2 i 3
Peti -over Robert M. Mumma, II
Date
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