HomeMy WebLinkAbout09-16-13 IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE ESTATE OF ORPHANS' COURT DIMS`,, ;., .J
ROBERT M. MUMMA, rn
Deceased. NO. 21-86-398 r-
OBJECTIONS OF BARBARA MCK. MUMMA (DECEASED) AN.D ry
LISA M. MORGAN AS EXECUTRICES OF AND TRUSTEES UMIER
THE WILL OF ROBERT M. MUMMA TO REPORT OF AUDITOR
On behalf of Barbara McK. Mumma ("Mrs. Mumma"), now deceased,' and herself, as
executors of and trustees under the will of Robert M. Mumma ("Mr. Mumma"), Lisa M. Morgan
("Lisa") respectfully submits these objections to and request for clarification of the August 5,
2013 Report of Auditor Joseph D. Buckley, Esquire (the "Report") with respect to objections
filed by Robert M. Mumma, II ("Robert II") and Barbara M. Mumma (`Barbara") to accounts
filed by Mrs. Mrs. Mumma and Lisa with respect to Mr. Mumma's estate (the "Estate") and two
testamentary trusts (the "Marital Trust," the "Residual Trust," and, collectively, the "Trusts")
under his will (the "Will").
OBJECTIONS IN THE NATURE OF A REQUEST FOR CLARIFICATION
Auditor Buckley's Report consumes nearly 130 pages. It summarizes hundreds of factual
findings from prior litigations, and also recites more than 250 findings of fact made by Auditor
Buckley based on the proceedings before him. Those proceedings consisted of more than 40
days of hearings, the transcripts of which fill nearly 9,000 pages of transcripts, at which 474
exhibits were admitted into evidence. Auditor Buckley's Report also recites conclusions of law
Mrs.Mumma died on July 17, 2010.
1
with respect 53 individual objections advanced by Robert II and Barbara, as well as addressing
various other matters referred to Auditor Buckley by the Court. It represents, in short, a
herculean effort to grapple with the highly-contested administration of the Estate and the Trusts
by Mrs. Mumma and Lisa from April 1986 until July 2010. Not surprisingly, given the
magnitude of the record and the duration of the proceedings, both in the hearings and in Auditor
Buckley's Report there is some inconsistency of terminology in referring to various parties and
entities. While perhaps not an obstacle to the Court's or the parties' understanding of Auditor
Buckley's findings and conclusions, the inconsistent terminology poses the potential for
confusion in the mind of any court that might review the Report in the context of an appeal, as
well as to other courts in which the parties might seek to assert the Auditor's findings and
conclusions to establish that various matters covered in the Report are barred from re-litigation
or should be treated as finally adjudicated by res judicata, collateral estoppel, law of the case
and/or other forms of preclusion.
The prospect for such confusion is all too apparent given the history of litigation
surrounding the Estate, the Trusts and various entities and assets in which they have an interest.
Experience has shown that this Court's decisions have at times turned, for example, on such
minute details as whether or not "Pennsy Supply" and "Inc." are separated by a comma. Robert
M Mumma, II v. Pennsy Supply, Inc., No. 99-2765 Equity, Opinion and Decree Nisi (C.P.
Cumberland May 17, 2002), post-trial motions denied and final decree entered, Opinion and
Final Decree (July 29, 2002), aff'd, 833 A.2d 1156 (Pa. Super. 2003), allocatur denied, 577 Pa.
723, 847 A.2d 1287 (2004). Judge Rambo in the United States District Court for the Middle
District of Pennsylvania was forced, in an action pending before her, to disentangle the fact that
in his opinion in Barbara McK. Mumma et al. v. Robert M Mumma, II et al.,No. 66 Equity 1988
2
(C.P. Cumberland Mar. 24, 1992), "Judge Sheely used the abbreviation `Pennsy Supply' for the
Pennsylvania Supply Company," as well as for Pennsy Supply, Inc.Z While any ambiguity did
not affect Judge Sheely's analysis, it rendered less-than-clear to Judge Rambo nearly two
decades later precisely what he intended by certain references. In Iight of the fact that Auditor
Buckley's Report, and any decision of this Court with respect to it, could well be reviewed for
similar purposes by other courts in the future, Lisa believes it is appropriate for the Court either
to request that Auditor Buckley issue or on its own adopt a revised version of the text that uses
consistent references to people and entities. 'Thus, for example, various references to "Barbara
McK. Mumma," "Mr. Mumma's widow," "the executrix," etc. would be replaced in all places to
which she is referred by "Mrs. Mumma." Similarly, where for shorthand Auditor Buckley
referred to "the Estate" rather than specifying whether he was referring in particular instances to
the Estate, one or both of the Trusts, and/or Mrs. Mumma and Lisa as executrices and trustees,
some subset or all of these, a revised set of findings and conclusions would clarify and make
more precise the specific references.
For the Court's and Auditor Buckley's convenience, a redlined version of the Report
reflecting revisions to standardize references is attached as Appendix A. A summary of persons
and entities and the references used for each of them in Appendix A is attached as Appendix B s
2 Robert M: Mumma, H v. Bobali Corp. et al., 2009 WL 2351732 at *3 (M.D. Pa. July 29, 2009), aff'd,
382 Fed.Appx.209, 2010 WL2113473 (3d Cir.2010),
3 Lisa believes it is important that the clarifications summarized in Appendix A be adopted in a
writing issued by the Court in order to eliminate the potential for confusion. Mrs. Mumma and Lisa,
in their motion for post-trial relief in the case to which Judge Rambo referred, proposed edits to the
opinion to clarify the references. At oral argument on post-trial motions, all counsel acknowledged
that the proposed clarifications were appropriate, and in his opinion denying Robert II's motion for
post-trial relief and entering a final decree,Judge Sheely adopted his prior findings "in tote, with the
agreed upon amendments. . . ." Barbara MCA'. Mumma, et al. v. Robert M Mumma, R et al., No. 66
Equity 1988, Opinion and Order at I (C.P. Cumberland Nov. 5, 1992) [Auditor Hearing Exh T-98],
aff'd, 433 Pa. Super. 660, 639 A.2d 846 (1993), allocatur denied, 539 Pa. 679, 652 A.2d 1324
3
With the exception of those detailed in below under "OBJECTIONS IN THE NATURE OF
REQUESTS FOR CORRECTIONS," the changes summarized in Appendix A are not intended
to, and Lisa does not believe that their adoption would, effect any substantive change to Auditor
Buckley's findings or conclusions, though, of course, Auditor Buckley would be the ultimate
authority on that issue.
OBJECTIONS IN THE NATURE OF REQUESTS FOR CORRECTIONS
Among Auditor Buckley's hundreds of findings of fact and dozens of conclusions of law,
Lisa believes that a small number do not fully comport with or accurately reflect the testimony
and evidence given at the hearing or otherwise are potentially ambiguous. While these
inaccuracies may not pose an obstacle to the Court's or the parties' understanding of Auditor
Buckley's findings and ultimate conclusions, they nevertheless merit correction within this
proceeding. Further, these inaccuracies also pose the potential for confusion in the mind of any
court that might review the Report in the context of an appeal, as well as to other courts in which
the parties might seek to assert the Auditor's findings and conclusions to establish that various
matters covered in the Report are barred from re-litigation or should be treated as finally
adjudicated by res judicata, collateral estoppel, law of the case and/or other forms of preclusion.
A. Background Retrardine Accounts, Report pp. 3-4
Auditor Buckley's recitations of the various accounts on pages 3 and 4 read as follows:
(1994). However, because the "agreed upon amendments"were not reflected in Judge Sheely's final
decree,the potential for confusion confronted by Judge Rambo remained.
In order to avoid disturbing the integrity of prior courts' findings, Appendix A does not reflect any
changes to them (recited in the Report as Findings of Fact I through 225),though inconsistent use of
terminology within and among them raises the potential for concern. Should the Court desire, Lisa
will provide a revised version of Appendix A that standardizes references to people and entities
throughout all of the findings of fact and conclusions of law.
4
h The Fifth and Final Account and Proposed Distribution of Assets for the
Marital Trust established under the last Will and Testament of Robert M. Mumma
T._
(January 1, 2003 through July y 7, 2010
N. The Fifth and Final Account and Proposed Distribution of Assets for the
Residual Trust established under the last Will and Testament of Robert M. Mumma
(January 1, 2003 through July, 20101
These recitations incorrectly characterize these Accounts as being final accounts, when
such are interim accounts, and further incorrectly characterize these Accounts as proposing
distributions, when no distributions were proposed. In addition, a supplement to the Fifth and
Interim Account for the Residual Trust was filed during the course of the hearings. This
supplement is omitted from the listing of Accounts recited by the Auditor. Clarifications of these
matters are set forth in Appendix A.
B. Finding of Fact 31.6, Report P. 60
Auditor Buckley's Finding of fact 316 reads as follows:
After consultation and recommendations from both Mr. Hadley's firm and the attorneys
from MLB, it was agreed by all parties including the executrices and all the beneficiaries,
that Kim Company and Pennsylvania Supply Company should be liquidated at the same
time, first by merging Kim Company into Pennsylvania Supply Company then into Nine
Ninety Nine, Inc.
Finding of Fact 316 incorrectly states, in part, the sequence of events surrounding the
liquidations of Pennsylvania Supply Company and Kim Company on December 19, 1986,
While both corporations were in fact liquidated on that date, and the liquidation of Pennsylvania
Supply Company was preceded by the liquidation of Kim Company, Kim Company was not, in
fact, merged into Pennsylvania Supply Company. Nor was either of those corporations merged
into Nine Ninety-Nine, Inc.
The evidence and testimony at the hearing before Auditor Buckley (much of which was
duplicative of that presented to Judge Sheely nearly twenty years earlier) explained what became
5
of the assets of Pennsylvania Supply Company and Kim Company. Both corporations'
shareholders and directors signed consents to the Plans of Dissolution and Complete Liquidation
in December 1986.6 Each of the Plans recited that "[a]s soon as practicable, the directors shall
cause to be distributed to the shareholders all of the assets of the Company remaining after the
payment of or provision for all remaining obligations or claims against the Company. ."7
As Judge Sheely found, all of the shareholders of Pennsylvania Supply Company and
Kim Company also signed a Bill of Sale, and Robert II, on behalf of both corporations, executed
a master deed,$ both of which expressed the intention to convey "all of the properties, real,
personal and mixed, of Kim [Company] and all of the properties, real, personal and mixed, of
P[ennsylvania] S[upply] C[ompany] (including such of the Kim Properties as are distributable
to P[ennsylvania] S[upply] C'[ompany] upon the liquidation of Kim [Company]" to the family
member former shareholders of the two corporations as Mumma Realty Associates.9
The Bill of Sale also recited that the "shareholders of said corporations incident to the
liquidation thereof, have sold, conveyed, transferred, assigned, set over to, and vested in, the
[Mumma Realty Associates] their personal representatives, successors and assigns forever, all of
Kim [Company]'s and P[ennsylvania] S[upply] C[ompany]'s respective right, title and interest,
legal or equitable, in and to all of their present assets and business of every kind and nature
whatsoever as a going concern. . . . "10 Consistent with these broad provisions, the master deed
6 Auditor Hearing Exhs T-67,T-71.
7 Auditor Hearing Exhs T-67, T-71.
8 Barbara McK. Mumma, et al. v. Robert M. Mumma, II, et al.,No. 66 Equity 1988,Opinion and
Order,Findings of Fact 52, 53 (C.P. Cumberland Nov. 5, 1992) [Auditor Hearing Exh TA51,affd,
433 Pa, Super. 660, 639 A.2d 846 (1993), allocatur denied, 539 Pa. 679, 652 A.2d 1324 (1994)
[Auditor Report Findings of Pact 52, 53].
9 Auditor Hearing Exhs T-62,T-63 (emphasis supplied).
10 Auditor Hearing Exh T-62 (emphasis supplied).
6
recited that the two corporations "do grant and convey unto the [Mumma Realty Associates] . . .
all of the properties, real, personal and mixed, of Kim [Company] and P[ennsylvania] S[uppyy]
C[ompany], including ALL THOSE CERTAIN tracts or parcels of land hereinafter more
specifically described . . ."��
The MRA Agreements clarified what was to become of the non-real estate assets of
Pennsylvania Supply Company and Kim Company:
By execution hereof, each of the Owners hereby transfers to such Manager his or her respective
interest in all of the receivables, and all other non-real estate assets originally held by Kiln
Company, Harrisburg, Pennsylvania and distributed in the aforesaid liquidation transaction as
an advance toward the funds requirement mentioned in the preceding paragraph (except for
$272,617.95 being distributed to the individual Owners in lieu of Union Quarries, Inc. stock,
which amount shall be held by the Manager for distribution to them in 1987).12
By execution hereof, each of the Owners hereby transfers to such Manager his or her
respective interest in all ofthe receivables, and all other non-real estate assets originally
held by Pennsylvania Supply Company, Harrisburg, Pennsylvania and distributed in the
aforesaid liquidation transaction as an advance toward the funds requirement mentioned
in the preceding paragraph.1 3
Following the liquidations, Pennsylvania Supply Company and Kim Company owned no
property or other assets: "There's nothing there: no property, no cash, no anything, and . . .
those assets were distributed out into a tenancy in common pursuant to the governing documents:
the bill of sale. the MRA agreements,"14 None of the documents executed in connection with the
liquidations of Pennsylvania Supply Company and Kim Company makes any mention of any
merger of either of those corporations into Nine Ninety-Nine, Inc., nor were any records of the
Corporation Bureau referencing any such merger produced at the hearing before Auditor
ti Auditor Hearing Exh T-63 (emphasis supplied).
13 Auditor Hearing Exh 0 1-41 (emphasis supplied).
73 Auditor Hearing Exh T-65 (emphasis supplied).
'" Auditor Hearing,N.T., Aug. 3, 2009, at 1568-69 (Lisa).
7
Buckley. Nor is there evidence or testimony of any merger of Kim Company into Pennsylvania
Supply Company in connection with their respective liquidations.
Pennsylvania Supply Company and Kim Company were not merged out of existence or
formally dissolved due to the desires of some of the Mumma family members to keep them in
existence for sentimental reasons, In particular, Judge Sheely noted that Robert II was advised
that "complete liquidation of [Pennsylvania Supply Company] could take place and the charter
of Pennsy[lvania Supply Company] would not be terminated so long as no corporate actions
were taken for a sufficient length of time following the [liquidation].."1$ The continuing
existence of Pennsylvania Supply Company following its liquidation on December 19, 1986 is
inconsistent with the conclusion that it was merged into Nine Ninety-Nine, Inc. at that time.
While the technical inaccuracy of this finding is, perhaps, not momentous in the context
of the Auditor's Report and the resolution of accounts filed by Mrs. Mumma and Lisa regarding
the Estate and the Trusts, accuracy regarding the nature and sequencing of events in connection
with the liquidations of Pennsylvania Supply Company and Kim Company is essential given that
Robert II has continued to insist, in multiple venues, that the liquidations never occurred and/or
were fraudulently conducted.
C. Finding of Fact 327, Report V. 61
Auditor Buckley's Finding of Fact 327 reads as follows:
In early 1987, Hadley advised the Executrices that for ease of accounting, the two
Colorado companies, Middle Park, Inc. and Bobali, Inc. should be merged.
Finding of Fact 327 incorrectly states the state of incorporation of Bobali Corporation.
While Middle Park, Inc. was, in fact, a Colorado corporation, Bobali Corporation is a
'$ Barbara McK Mumma, et al. v. Robert M Mumma, II, et al.,No. 66 Equity 1988, Opinion and
Order [Auditor Hearing Exh T-95],Finding of Fact 13 [Auditor Report Finding of Fact 13].
8
Pennsylvania corporation. Multiple documents admitted at the hearing before Auditor Buckley
recited that Bobali Corporation is incorporated in Pennsylvania.16
While, as with the particulars of the liquidations of Pennsylvania Supply Company and
Kim Company discussed above in the context of Finding of Fact 316, the state of incorporation
of Bobali Corporation may not be vital to the disposition of objections to accounts filed by Mrs.
Mumma and Lisa regarding the Estate and the Trusts, it is important that the Report be fully
accurate on the issue in light of other pending litigation. As he did in the hearings before the
Auditor, Robert 11 has claimed in litigation currently pending in Dauphin County that the merger
of Middle Park, Inc. into Bobali Corporation was "fraudulent" or that it never actually
occurred.17
D. Findings of Facts 347 and 353, Report p. 64 and 358 p 65
Auditor Buckley's Findings of Fact 347, 353 and 358 read as follows:
Mr. Hadley was asked by the Executrices to review the various assets and make
recommendations for placing 50% of the gross estate into the marital trust and 50% of the
gross estate into the residual established under the decedent's will ("Marital Trust" and
"Residual Trust").
Mr. Hadley met and discussed differing mixes of assets with the executrices and their
attorneys and after several months the assets were divided as close as practicable on a
fifty-fifty basis between the two trusts, each trust receiving approximately $8,200,000.00
in assets.
By November 18, 1487, the executors, after advice and review by their accountants and
attorneys, had separated the assets of the Estate and placed fifty percent in the marital trust and
16 See, e.g., Auditor Hearing Exh T-179 (Plan and Agreement of Merger of Middle Park, Inc. into
Bobali Corporation (referencing "Bobali Corporation, a Pennsylvania corporation"); Auditor
Hearing Exh T-189 (Resolution of Board of Directors (same). There was, in fact, no evidence, or
even any suggestion, at the hearing before Auditor Buckley that Bobali Corporation was other than a
Pennsylvania corporation.
Lisa M Morgan v. Robert M. Mumma, 1I et al.,No. 2010-CV-11490-EQ(C.P. Dauphin).
9
fifty percent in the residuary trust. The foregoing Findings of Fact incorrectly characterize the
i
funding of the Martial and Residuary Trusts as being equal. While the Martial "Trust was in fact
funded, as required by Article SEVENTH of the Will," with fifty percent (50%) of the gross
estate as finally determined for Federal Tax purposes consistent with the Estate Tax Closing
Letter,19 the Residuary Trust was, of course, funded with the assets remaining in the estate after
such funding of the Marital Trust as evidenced in the accounts filed. Because the total gross
estate as finally determined by the IRS was $17,296,337,20 the pecuniary amount yielded by the
calculation prescribed in the Will is $8,648,169, which amount was used for the funding of the
Marital Trust 21
This same characterization of the funding of the two trusts as "equal" appears in the
discussion of Objection 2,22 Objection 4323 and Objection 45,24 which should be revised
accordingly as reflected in Appendix A.
E. Findings of Fact 359, Report p. 65, and 374,Report V. 67
Auditor Buckley's Findings of Fact 359 and 374 read as follows:
On November 18, 1987, after the assets were divided into the two trusts the Executrices
decided that Mrs. Mumma's five percent withdraw power would be taken on an in kind
basis. (Exhibit T-19).
is Auditor Hearing Exh A-4.
19 Auditor Hearing Exh A-3.
20 Id.
21 Auditor Hearing, N.T. Apr. 22, 2010, at 5206-07 (Attorney O'Connor); Apr. 23, 2010, at 5582
(Attorney O'Connor); Dec. 15,2009, at 3762 (Mr. Hadley).
22 Report pp. 84-85.
23 Report pp. 112-13.
24 Report p. 115.
10
After receiving first in kind distribution in lieu of cash, thereafter on an annual basis,
Mrs. Mumma annually, up until the time of her death exercised her right of taking five
(5)percent of the value of the trust in kind, in lieu of cash.
Finding of Fact 359 technically is correct with respect to Mrs. Mumma's first exercise of
her 5% withdrawal right. However, Lisa is concerned that, when read in conjunction with
Finding of Fact 374 and other statements made in the Report, it may be misleading. Contrary to
what is suggested by Finding of Fact 374, Mrs. Mumma's annual exercises of her 5% withdrawal
right from 1987 through her death in 2010 were not uniformly funded by in-kind distributions of
E assets.
f
j Mrs. Mumma exercised her 5% withdrawal right annually "after the first year" following
Mr. Mumma's death.25 Beginning in 1987, she signed annually documents "request[ing] a
distribution from the Trust of five percent of the value of the principal of the Trust, . . ."26
The amounts to be withdrawn in respect of Mrs. Mumma's exercises of her 5%
withdrawal right were calculated by accountant George W. Hadley, Jr. ("Mr. Hadley"), Those
calculations were reflected in annual documents prepared by Mr. Hadley and sent to Attorney
Joseph O'Connor, Jr. ("Attorney O'Connor") and Mrs. Mumma.27 For the years 1987 through
1993, because of a shortage of cash in the Marital Trust, Mrs. Mumma's withdrawal requests
were satisfied by payment to her of stock in two corporations, Nine Ninety-Nine, Inc. and
Hummelstown Quarries, Inc. In order to avoid annual re-valuations of the stock relative to other
assets in the Marital Trust, in years in which she was paid stock in satisfaction of her requests,
she was paid 5% of the total amount of the stack of each of the corporations remaining in the
25 Auditor Hearing, N.T. Apr. 23, 2009, at 680 (Mrs. Mumma); Dec. 15, 2009, at 3762-64 (Mr.
Hadley);Dec. 17,2009,at4136-37(Mr. Hadley).
26 Auditor Hearing,N.T. Apr. 23, 2009, at 681-82 (Mrs. Mumma); Apr. 22, 2010, at 5171-74 (Attorney
O'Connor); Auditor Hearing Exhs T-18, T-54, T-54A, T-111.
27 Auditor Hearing Exh T-24; Auditor Hearing, N.T. Dec. 17, 2009, at 4137-38 (Mr. Hadley); Apr. 22,
2010, at 5170-73 (Attorney O'Connor); May 2, 2011, at 103-04 (Mr. Hadley).
II
Marital Trust.28 The only exception was small numbers or fractions of shares included to
eliminate fractions 20 In years in which Mrs. Mumma's withdrawal request was satisfied with
Nine Ninety-Nine, Inc. and Hummelstown Quarries, Inc. stock, she was not given any other
assets.30 After the sale of the family businesses to CRH in July 1993, there was sufficient cash
going forward to pay Mrs. Mumma in cash for her exercises of the 5% withdrawal right.31
The imprecision in Findings of Fact 359 and 374 in the Report regarding the years in
which Mrs. Mumma's exercises of her 5% withdrawal right were funded through in-kind
distributions of stock also appears in the discussions of Objection 4,32 Objection 3233 and
Objection 36,34 which should be revised accordingly as reflected in Appendix A.
F. Finding of Fact 465, Report p. 78
Auditor Buckley's Findings of Fact464, 465 and 466 read as follows:
Objector Robert Mumma had requested a review of certain corporate books and records.
A meeting was scheduled at a Harrisburg law office and during the meeting, Objector
Robert Mumma grabbed a stack of records, fled the building and had to be chased down
the public street by Lisa Morgan's husband.
Objector Robert Mumma was caught and the records were retrieved and returned to the
law firm.
28 Auditor Hearing,N.T.,Dec. 17, 2009,at 4137-40(Mr.Hadley); Auditor Hearing Exhs T-22,T-24.
29 Auditor Hearing,N.T. Dec. 17, 2009, at 4138-39 (Mr. Hadley); Auditor Hearing Exh T-24.
30 Auditor Hearing,N.T. Dec. 17,2009(Mr. Hadley); May 2,201 1, at 105-06(Mr. Hadley).
31 Auditor Hearing,N.T. Dec. 17, 2009, at 4140(Mr. Hadley); May 2, 2011, at 106(Mr. Hadley).
32 Report p. 86.
33 Report p. 98.
34 Report p. 103.
12
Finding of Fact 465 appears to combine two separate events. The testimony before
Auditor Buckley described a meeting with regard to High-Spec, Inc. As Lisa described the
meeting in response to a question from Robert II,
. . . it was with the High-Spec documents where we had a meeting at which you were
present at Bill Boswell's office, and the High-Spec documents, the books and records that
you're looking for, the minute book, the stock book, were on the table that you jpicked up
and ran down the street with and Mr. Boswell ran after you and retrieved them.3
The occasion on which Lisa's husband, Scott Morgan, accompanied Mrs. Mumma to Mr.
Boswell's office to retrieve records stored there of various companies, including at least some
records of High-Spec, Inc., was in response to the episode at the High-Spec, Inc. meeting and
other instances in which Robert II obtained corporate records from Mr. Boswell, making them
effectively unavailable to Mrs. Mumma and Lisa.36
The confusion regarding these two events also appears in the discussion of Objection
24,37 which should be revised accordingly as reflected in Appendix A.
G. Conclusion of Law Regarding Objection 18,Report at P. 91.
The Conclusion of Law relating to Objection 18 reads in part as follows:
. . . The evidence produced during the course of the hearings show that Mrs. Mumma and
Lisa's actions regarding the handling of estate's/trusts' interest in High Spec, Inc, was
anything but proper.
This sentence appears to contain a typographical error. Rather than stating that". . . Mrs.
Mumma and Lisa's actions regarding the handling of estate's/trusts' interest in High Spec, Inc.
was anything but proper," it seems that the sentence instead should have said — consistent with
the evidence and testimony presented to Auditor Buckley — that "Mrs. Mumma and Lisa's
35 Auditor Hearing,N.T. Aug. 3, 2009, at 1614(Lisa)(emphasis supplied).
36 Id at 1613-14;see also N.T. Apr, 30,2010, at 6499-500(Lisa).
37 Report p. 96.
13
actions regarding the handling of estate's/trusts' interest in High Spec, Inc. were anything but
improper."
H. Conclusion of Law Regarding Objection 41,Report at P. 107
The Conclusions of Law relating to Objection 41 read in part as follows:
. . . The undersigned notes that in each of the many legal actions involving the Estate
whether initiated by Objector, by the Estate or by others, the Estate and the
executors/trustees have not favored the position espoused by Objector. . . .
This sentence seems to contain a typographical error. Rather than stating that "the Estate
and the executors/trustees have not favored the position espoused by [Robert II]," it appears that
the sentence instead should have said — consistent with the evidence and testimony presented to
Auditor Buckley — that "the courts presiding over such actions have not favored the positions
espoused by Robert Il."
WHEREFORE, Lisa M. Morgan respectfully requests that this Court sustain the
foregoing Objections in the Nature of Requests for Corrections, and adopt the changes
summarized in Appendix A and clarified by Appendix B.
R ectfully submitted,
By:
No V. Otto, III, Esquire
I.D. No. 27763
George B. Faller, Jr., Esquire
I.D. No. 49813
Jermifer L. Spears, Esquire
I.A.No.87445
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
{717}243-3341
14
Brady L. Green, Esquire
I.D. No. 56450
WILBRAHAM, LAWLER & BUBA
1818 Market Street, 31st Floor
Philadelphia, PA 19103
(215) 972-2860
Dated: September 16, 2013 Attorneys for Lisa M. Morgan
15
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1
EXHIBIT A
1 �
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS COURT DIVISION
IN RE: ESTATE OF ROBERT M.
MUMMA, deceased NO. 21-86-398
REPORT OF AUDITOR
This report covers hearings held April 21-23, 2009, June 17-19, 2009, August 3-6, 2009,
October 26-29,2009, October 30, 2009, December 14-18, 2009, April 19-23,2010, April 26-
20, 2010, June 14-16, 2010, May 2-5, 2011, May 24-25, 2011 and June 20-22, 2011.
This Honorable Court has Jurisdiction of this matter pursuant to Section 713 of the Probate,
Estates and Fiduciary Code (20 Pa. C. S. Section 713).
BACKGROUND
On April 12, 1986, Robert M. Mumma("r. Mumma") died leaving a Last Will and Testament
(the "Will") which was duly presented for probate with the Register of Wills in and for the
County of Cumberland, Commonwealth of Pennsylvania. Following the filing of three (3)
Interim Accounts to which objections were filed, this Honorable Court through its Orphan's
Court Division appointed Taylor Andrews, Esquire as Auditor. Issues arose, a fourth Interim
Account was filed and thereafter, in 2008, the undersigned was appointed Auditor.
Following the under sign's appointment as Auditor, I met with all parties and their
counsel and requested that each of the Objectors set forth the issues which would be determined
by the undersigned. Objector Robert M. Mumma II (herein after. except in some findings of
fact quoted in prior litigation. Somet4 —°^ ^^"°-' RN4N4 rT Mumma 1
Robert M, Obje tof and Obje.ter Bee Mumma) presented forty two issues and Objector
Barbara M. Mumma (hereinafter, except in some findings of fact quoted from decisions in prior
litigation, "Barbara") .,t:..,,,.. P^„°d Bab n....t,,.,.., rn...,,m Objeet r and Objeet r Babb
Ida) presented seven issues. Robcrt II 's Objections are numbered one
through forty-two and Objeeter—Barbara NCAMun.:;a's issues are numbered forty-three through
forty nine. Over the course of several years, more than neafl}-forty days of hearing were held,
thousands of pages of transcripts produced, hundreds of exhibits presented, numerous ancillary
legal actions, motions and appeals filed by the parties, and a Fifth Account and Request for
Distribution filed. Also during the course of the hearings Barbara McK. Mumma (hereinafter,
except in some findings of fact quoted from decisions in prior litigation, "Mrs. Mumma"), the
widow of Mr. Reber N4. Mumma and one of the his executrices and trustees under his Will,
passed away.
During the course of the hearings, His Honor called upon the undersigned relative to a
number of matters which were handled as interim reports to His Honor.
This Report involves objections filed to the following accounts:
A. The First and Interim Account for the Estate of Robert M. Mumma (April 12, 1986
through March 31, 1991).
B. The Second and Interim Account for the Estate of Robert M. Mumma (April 1, 1991
through March 31, 1996).
C. The Third and Interim Account for the Estate of Robert M. Mumma (April 1, 1996
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E. The First and Interim Account for the Marital Trust established under the last Will
and Testament of Robert M. Mumma(November 19, 1986 through March 31, 1991).
F. The Second and Interim Account for the Marital Trust established under the last Will
and Testament of Robert M. Mumma(April 1, 1991 through March 31, 1996).
G.The Third and Interim Account for the Marital Trust established under the last Will
and Testament of Robert M. Mumma (April 1, 1996 through March 31, 1999).
H.The Fourth and Interim Account for the Marital Trust established under the last Will
and Testament of Robert M. Mumma (April 1, 1999 through December 31,2003).
I. The Fifth and Interim F ial Account and Proposed Distribution Of Asset,-, for the
Marital Trust established under the last Will and Testament of Robert M. Mumma (January 1,
2003 through July 17, 2010).
J. The First and Interim Account for the Residual Trust established under the last Will
and Testament of Robert M. Mumma(November 24, 1986 through March 31, 1991).
K. The Second and Interim Account for the Residual Trust established under the last
Will and Testament of Robert M. Mumma(April 1, 1991 through March 31, 1996).
L. The Third and Interim Account for the Residual Trust established under the last Will
and Testament of Robert M. Mumma(April 1, 1996 through March 31, 1999).
M. The Fourth and Interim Account for the Residual Trust established under the last
Will and Testament of Robert M. Mumma(April 1, 1999 through December 31, 2003).
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N. The Fifth and Interim Final Account and °-^^^Sett Distfibution of Assets-for the
Residual Trust established under the last Will and Testament of Robert M. Mumma (January 1,
2003 through July 17. 2010).
O. Supplement to Account of the Residual '1 rust Under Will of Robert M. Muwnma. Deceased
During the hearings, the parties filed many motions some which were resolved during
the hearings, others which were not, but the findings and conclusions below shall either address
or render the motions moot. The parties had been before this Honorable Court, the other
Commonwealth Courts of Common Pleas, Florida County courts of record, and the appellate
courts of this Commonwealth and of the State of Florida during the administration of the estate
and the trusts created thereunder. Judges with greater wisdom and experience than the
undersigned made findings of fact relative to this estate and its administration. It is prudent to
take official notice to the relevant findings as they were made following hearings and trials
when the information was fresh in the minds of the witnesses. Also prior to those hearings the
parties conducted extensive discovery and were given the opportunity to cross examine
witnesses and some of the witnesses at the time of the hearings conducted by the undersigned
were unavailable due to death, being outside the jurisdiction of this Honorable Court or could
not recall the particulars of past events.
The undersigned was appointed to make findings of fact and conclusions of law to the
following issues and I have added my own issues fifty and fifty-one, and the Estate has raised
two additional matters which are numbered fifty-two and fifty-three through fifty-two relative to
all accounts filed by the Executrices/trustees, Lisa Morgan (hereinafter "Lisa") and Mrs.
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I. Whether the Executrices/Trustees have grossly undervalued the assets of the Estate;
2. Whether the Executrices/Trustees have disproportionately allocated the assets of the
Estate into the Marital Trust;
3. Whether the Executrices/Trustees have incurred unnecessary capital gains taxes,
fiduciary income taxes, or inheritance taxes;
4. Whether the Executrix Barbara McK. Mumma is entitled to selectively withdraw
individual assets / assets-in-kind from the Marital Trust as opposed to receiving the
designated dollar amount or percentage;
5. Whether the Executrices/Trustees failed to properly account for the stock distributions
to Barbara McK. Mumma;
6. Whether the Executrices/Trustees failed to properly account for and/or distribute estate
income to Barbara McK. Mumma;
7. Whether the allocations of Decedent's corporate stock to the Marital Trust violated
rights of first refusal accruing to the undersigned;
8. Whether the Executrices/Trustees failed to allocate capital gains and increases in value
of estate assets during the administration to the Residuary Trust;
9. Whether the Executrices/Trustees failure to significantly fund the Residuary Trust until
2002, while the Marital Trust was funded in 1987, violated the intent of the Decedent's
Will;
10. Whether the Executrices/Trustees improperly accounted for the Fulton Bank property in
Lemoyne, Pennsylvania;
11. Whether the Executrices/Trustees improperly accounted for the Leadville, Colorado
property;
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12. Whether the Executrices/Trustees improperly accounted for the Bender property in
Mount Holly Springs, Pennsylvania;
13. Whether the Executrices/Trustees improperly accounted for the Grove property in
Mount Holly Springs Pennsylvania;
14.Whether the Executrices/Trustees undertook unilateral and unauthorized actions on
behalf of corporations and corporate enterprises and otherwise failed to comply with
applicable state law and regulations;
15. Whether the Executrices/Trustees have not recognized or have concealed shareholder
agreements that govern the ownership of corporate stock;
16. Whether the Executrices/Trustees' actions and omissions with respect to shareholder
agreements would have precluded the estate from acquiring stock in multiple corporations,
including, but not limited to, Pennsylvania Supply Company, Pennsy Supply Inc., Bobali
Corp., Lebanon Rock, Inc., High-Spec., Inc.,Nine-Ninety-Nine, Inc., and/or 999, Inc.;
17. Whether the Executrices/Trustees properly controlled the Decedent's shares in High-
Spec, Inc., Pennsylvania Supply Company, Pennsy Supply Inc., Bobali Corp., Lebanon
Rock, Inc.,Nine-Ninty-Nine, Inc., and/or 999, Inc.;
18. Whether the Executrices/Trustees violated the Share Restrictive Agreement applicable
to High-Spec, Inc. when they refused to offer to sell the Decedent's shares in High-Spec,
Inc. to the remaining shareholder at book value;
19. Whether the Executrices/Trustees violated Section 3 of the Share Restrictive Agreement
applicable to High-Spec, Inc. when it transferred the Decedent's shares in High-Spec, Inc.
to the Residuary Trust in January 2002 (See generally Objection 414 filed May 27,2004);
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20. Whether the Executrices/Trustees undervalued the stock of Pennsylvania Supply
Company, Pennsy Supply Inc., Bobali Corp., Lebanon Rock, Inc., High-Spec., Inc., Nine-
Ninty-Nine, Inc., and/or 999, Inc.;
21. Whether the Executrices/Trustees overstated the value of the Decedent's stock;
22. Whether the Executrices/Trustees have engaged in corporate transactions which
conveyed assets out of Pennsylvania Supply Company, Kim Company, Pennsy Supply Inc.,
Bobali Corp., Middle Park, Inc., Nine-Ninty-Nine, Inc., and/or 999, Inc., and other
unknown transactions;
23. Whether the Executrices/Trustees fraudulently terminated the corporate existence of
Middle Park, Inc. via merger with another corporate entity;
24. Whether the Executrices/Trustees knowingly concealed corporate records that were
known to be altered in their effort to conceal the identity of true stock ownership;
25. Whether the Executrices/Trustees concealed their knowledge of the Decedent's
activities prior to April 12, 1986 which became known to them and their accounts, and
which they further concealed vial the Stradley Ronin law firm, without any explanation of
same or without otherwise disclosing same to the shareholders;
26. Whether the Executrices/Trustees fraudulently misappropriated life insurance proceeds
rightfully owned by Pennsylvania Supply Company and Pennsy Supply;
27. Whether the Executrices/Trustees individually assumed corporate designations which
were not set forth in any corporate by-laws;
28. Whether the Executrices/Trustees individually assumed corporate positions to which
they were not elected and which were not otherwise authorized;
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29. Whether the Executrices/Trustees have awarded themselves salaries and health insurance
benefits that were never authorized;
30. Whether the Executrices/Trustees have failed to account for or document significant
changes in major investment holdings of the Estate;
31. Whether the Executrices/Trustees engaged in and/or have continued to engage in a
systematic pattern of self-dealing and personal enhancement;
32. Whether withdrawals from the Marital Trust have substantially diminished the interests of
the beneficiaries/remaindermen while greatly enhancing the interests of the
Executrices/Trustees;
33. Whether the Executrices/Trustees properly selected and retained Estate counsel;
34. Whether the Executrices/Trustees are paying duplicative, excessive, or unjustified counsel
fees to Estate counsel;
35. Whether the Executrices/Trustees are paying excessive or unjustified accountant fees to the
Estate accountant(s);
36. Whether the Executrices/Trustees have perpetuated and engaged in and continue to
perpetuate and engage in an enterprise and/or scheme of fraudulent conveyances of estate
assets;
37. Whether the Executrices/Trustees have failed to account for or document the contents of all
safe deposit boxes owned individually or jointly by the Decedent;
38. Whether the Executrices/Trustees have failed to account for or document the value of all
bank accounts owned individually or jointly by the Decedent;
39. Whether the Executrices/Trustees have failed to account for or document the Decedent's
documents, contracts, and other records throughout the administration of the Estate,
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including the failure to account for their storage and record-keeping in Pennsylvania, Florida,
Europe, and elsewhere;
40. Whether the Executrices/Trustees refused to entertain the highest and best offers of
purchase of the Decedent's property and/or enterprises thereby failing to maximize the value
of the Estate;
41. Whether the Executrices/Trustees have failed to carry out the terms of the Decedent's Will
and/or acted in contravention of the Decedent's testamentary plan; and,
42. Whether the Executrices/Trustees are subject to surcharge attributable to their acts or
omission.
43. Whether the selection of assets to be distributed by the Marital Trust and to the Residuary
Trust was appropriate. In order to resolve this objection and several others, it will be necessary
to understand the justification for what appeared to be a counterproductive asset distribution
strategy. Assets for which rapid appreciation could be expected were placed in the Marital
trust, not the Residuary Trust, thereby creating the potential for unnecessary estate tax liability
upon the death of Barbara McKimmie Mumma.
44. Whether assets distributed to Barbara McKimmie Mumma as income distributions,
including the Fulton Bank property, were undervalued thereby prejudicing the interests of
other beneficiaries. In order to resolve this objection, it will be necessary to determine the
method by which various non-liquid assets were valued and the appropriateness of the
valuations.
45. Whether assets distributed to Barbara McKimmie Mumma pursuant to her power to receive
an annual distribution of 5% of the value of the Marital Trust, were undervalued thereby
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prejudicing the interests of the other beneficiaries. In order to resolve this objection, it will
be necessary to determine the method by which various non-liquid assets were valued.
46. Whether discretionary distributions were made to Barbara McKimmie Mumma from
the Marital Trust despite her indication that she did not want distributions unless required
for her immediate expenses. In order to resolve this objection, it will be necessary to
determine the advice and strategy, as well as the nature of the input from Mrs. Mumma, that
resulted in substantial distributions being made to Mrs. Mumma in years when she did not
have any need for funds and in circumstances which appeared to run counter to her
expressed family financial and tax strategy.
47. Whether estate assets, including entities in which estate had an interest, were managed
efficiently. In order to resolve this objection, it will be necessary to determine why the
estate adopted a strategy of allowing real estate assets of the estate and of Bobali to remain
unproductive for extended periods of time and, in some cases, of not even pay8ing the real
estate taxes due on properties, thereby risking that they would be sold at tax sale and their
future value lost to the estate permanently.
48. Whether the estate was wound up promptly and efficiently, without incurring
unnecessary legal and other expenses and prejudicing the interests of beneficiaries. In order
to resolve this objection, it will be necessary to determine why the estate remained open for
over twenty-two years and why some assets have remained unsold and unproductive for that
period of time. It is evident that there have been various legal proceedings related to the
estate, but it is far from clear why the estate could not have been wound up more quickly
and without the attendant legal expense.
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49. Whether the Estate was administered in a manner that exacerbated friction among
family members thereby delaying the administration of the estate and increasing legal and
other expenses. In particular, Ms. Mumma is concerned that the approach adopted by
counsel to the estate - whatever the legal merit of any particular position on any particular
issue - has led to unnecessary friction among family members. It was the intent of the
Testator that his assets be utilized in a manner that would allow, to the greatest extent
possible, for all family members to benefit jointly and engage in joint efforts to make the
best and most productive use of family assets and to solidify rather than undermine family
bonds. Particularly in light of that intention, means could have been pursued to resolve some
or all of these matters by an amicable process which would have lessened rather than
increased tensions and ultimately would have benefited all family members.
50. What amount of auditor fee and costs, if any are due the previously appointed auditor,
Taylor Andrews, Esquire?
51. Whether Barbara McK. Mumma's decisions regarding the handling of her personal
estate is relative to her role as executrice/trustee of the Estate of her husband Robert M.
Mumma.
52. Whether the Estate, the trusts or the Objectors should bear the costs and fees associated
with the Auditor's hearings, and if any apportionment among and between the parties is fair,
equitable and appropriate, how is it to be calculated.
53. Whether additional attorney fees should be awarded to the Estate and the trusts.
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Findings of Fact
The following facts were determined by Judge Sheeley in the matter of BARBARA McK.
MUMMA AND LISA M. MORGAN, individually and as executrixes of the ESTATE OF
ROBERT M. MUMMA, deceased, and LINDA M. ROTH, Plaintiffs v. ROBERT M.
MUMMA, II, and BARBARA M. McCLURE, Defendants, Cumberland County Court of
Common Pleas, docketed at NO. 66 EQUITY 1988, of which official notice is taken
1. On April 12, 1986, Robert M. Mumma died testate.
2. Plaintiffs, Barbara McK. Mumma (Mrs. Mumma) and Lisa M. Morgan (Lisa)are
executrices of the Estate of Robert M. Mumma(the Estate).
3. At the time of Mr. Mumma's death the following conditions existed withrespectto
the family owned business, Pennsylvania Supply Co. (Pennsy Supply):
a) The Estate owned approximately 98 percent of the stock of Pennsy Supply.
b) Pennsy Supply owned more than 82 percent of the outstanding stock of Kim
Company, the second tier holding company.
c) Kim Company was the largest shareholder of Nine Ninety-Nine, Inc. (999).
d) The Estate controlled, through its majority stock holings, both Pennsy Supply
and Kim Company.
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e) Pennsy Supply was a wholly-owned subsidiary of 999.
f) The Estate, Mrs. Mumma, Lisa, Linda M. Roth (Linda), Robert M. Mumma II
(Bob), and Barbara M. McClure (Barbara) were the shareholders of Kim Company.
g) The Estate, Mrs. Mumma, Lisa, Linda, Bob and Barbara were also the shareholders
of 999.
4. At a meeting at the offices of Pennsy Supply of November 5, 1986, Arthur L. Klein, a
tax specialist at Morgan, Lewis and Bockius, brought to the attention of the shareholders of Pennsy
Supply and Kim Company, the unfavorable changes in the federal tax laws caused by the passage of
the 1986 Tax Reform Act.
5. The 1986 Tax Reform Act overruled the General Utilities doctrine which had previously
permitted corporations to liquidate and pay only one tax on the appreciation in the value of corporate
assets rather than two taxes; one at the corporate and the other at the shareholder level.
6. The November 5, 1986 meeting at Pennsy Supply was attended by Mr. Klein, Mrs.
Mumma, Lisa, Bob, Linda, Barbara, and George W. Hadley.
7. Mr. Hadley is a partner in the accounting firm of Locker, Kennedy and Felmeden in
Buffalo,New York and is the accountant for the Mumma family businesses.
8. At the November 5 meeting, the shareholders, Mr. Klein and Mr. Hadley discussed the
desirability of liquidating Pennsy Supply and Kim Company prior to December 31, 1986, in order to
take advantage of the grace period allowed by the 1986 Tax Reform Act.
9. Mr. Klein advised Mrs. Mumma and Lisa that they could avoid the unfavorable
consequences of double taxation if the assets of Pennsy Supply and Kim Company were transferred to
the shareholders as tenants-in-common.
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10. If the assets of Kim Company and Pennsy Supply had been transferred to the
family members as a partnership, both the transferors and the recipients would have been
required to pay real estate transfer taxes to the Commonwealth of Pennsylvania.
11. It was the understanding of Mr. Hadley that the tenancies-in-common which
were formed to receive the assets of the dissolved corporations would function similar to
partnerships.
12. The tenancy-in-common agreements were drafted to include provisions for
majority-in- interest control over the management of the properties and voting control of the
tenants-in-common based upon their percentage holdings in Pennsy Supply and Kim Company.
13. Following the November 5, 1986, meeting, Mr. Klein sent Bob a letter explaining
that complete liquidation of the corporation could take place and the charter of Pennsy Supply
would not be terminated as long as no corporate actions were taken for a sufficient length of
time following the dissolution.
14. Lisa circulated a single draft agreement among tenants-in-common (Exhibit R-
10) to Mrs. Mumma, Bob, Linda, and Barbara along with a cover letter dated December 11,
1986.
15. Following the circulation of the single draft agreement among the tenants-in-
common, it was decided that because Kim Company was not a wholly-owned subsidiary of
Pennsy Supply, it would be preferable to have two separate agreements among the tenants-in-
common due to the different shareholding percentages for the two companies.
16. One tenancy-in-common agreement would govern the properties formerly owned
by Kim Company (agreement commonly referred to as MRA I) and the other tenancy-in-
common agreement would control the properties formerly held by Pennsy Supply (agreement
commonly referred to as MRA II).
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17. As of December 18, 1986, the two separate tenancy-in-common agreements (MRA
I and Il) concerning the liquidation of Pennsy Supply and Kim Company had been prepared.
18. Both MRA I and MRA II contained additional language under Section 14 that had
not been included when the single draft agreement among tenants-in-common was circulated on
December 11, 1986.
19. On the evening of December 18, 1986, language was added to Section 14, entitled
"Further Assurances, " which provided that each tenant would execute a power of attorney to
facilitate any transactions to be made pursuant to the agreement.
20. MRA I and MRA II were completed by the morning of December 19, 1986.
21. The signature pages of MRA I and MRA II agreements differed because each
agreement set forth the percentage interest of each tenant-in-common. The percentages used
corresponded with the percentage interests of the tenants-in-common as shareholders of Pennsy
Supply and Kim Company.
22. The other difference between the two agreements was that MRA I contained
language referring to the Union Quarries stock owned by Kim Company which language did not
appear in MRA II.
23. Mr. Skinner inserted additional language into Section 2 of MRA I after speaking to
Mr. Klein and Mr. Hadley on the morning of December 19,1986.
24. The inserted language in Section 2 stated: "except for $272,617.95 being distributed
to the individual owners (of Kim Company) in lieu of Union Quarries, Inc. stock, which shall be
held by Manage for distribution to them in 1987.
25. Prior to December 19, 1986, Kim Company owned fifty percent of the stock of
Union Ouarries and the Hemnt familv owned the remainine fiftv percent of the stock.
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26. The language was inserted into Section 2 upon the advice of Mr. Hadley that the
Union Quarries shares should be held in a block. This would preclude the possibility that one or
more of the Kim Company shares might be transferred to the Hempts, giving the Hempts voting
control over the corporation.
27. Bob and the other shareholders of Kim Company agreed that the Union Quarries'
shares should be held in a block.
28. As a result of the Estate owning more that eighty percent of the Kim Company
stock, the Estate would hold the block of Union Quarries' shares.
29. The figure of $272,617.95 inserted into Section 2 of MRA I represented the
proportional value of the individual holding of Mrs. Mumma, Lisa, Linda, Bob, and Barbara,
through their respective interests in Kim Company, in Union Quarries at the time of the
liquidation of Kim Company.
30. On the morning of December 19, 1986, William S. Skinner, an associate at
Morgan, Lewis & Bockius's Philadelphia office brought the two tenant-in-common agreements
in addition to several deeds and document to Harrisburg.
31. On the afternoon of December 19, 1986, a meeting was held at the offices of
Pennsy Supply in Harrisburg to execute the two tenancy-in-common agreements and other
documents concerning the liquidations of Kim Company and Pennsy Supply. Another purpose
of the meeting was to take the necessary steps to create the two new corporations, Mumma
Realty Associates, Inc. and Hummelstown Quarries, Inc.
32. Mrs. Mumma, Bob, and Mr. Skinner attended the December 19, 1986 meeting in
person. Lisa and Mr. Klein were present by telephone from the offices of Morgan, Lewis &
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Bockius in Philadelphia and Linda was present by telephone from St. Louis. Barbara was not
present at the meeting.
33. Mr. Hadley was also present in Harrisburg for portions of the December 19, 1986
meeting which pertained to the valuation figure used for the Union Quarries' shares in Section 2
of MRA I.
34. Mr. Skinner provided Mrs. Mumma and Bob with copies of the two tenancy-in-
common agreements. During the course of the meeting Mrs. Mumma and Bob reviewed the
agreements with Lisa, Linda, Mr. Klein and Mr. Skinner.
35. At the meeting, Bob had some concerns about whether the agreements would affect
his ability to pledge his interest as collateral and transfer his interest in the properties in trust for
the benefit of his children.
36. During the meeting, Bob also had questions about Section 2 of MRAI andwas told
that the provision was inserted to maintain the Union Quarries' stock as a block.
37. Mrs. Mumma and Bob signed the two tenancy-in-common agreements (MRA I and
II) at the December 19, 1986 meeting. The signature pages were attached to the original
agreements when Mrs. Mumma and Bob signed them.
38. In addition, Mrs. Mumma and Bob signed several additional loose signaturepages
identical to those attached to the agreements.
39. Bob admits that his signature appears on Exhibit P-1 and Exhibit P-2. (MRA I and
MRA II agreements).
40. Lisa signed the MRA agreements on the evening of December 18, 1986, at
Morgan, Lewis & Bockius in Philadelphia.
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41. Mr. Skinner and Lisa attest that Exhibits P-1 and P-2 are exact copies of the MRA
agreements as signed by Mrs. Mumma and Bob.
42. Following the December 18, 1986 meeting, both Mr. Skinner and Lisa saw the
executed originals of MRA I and MRA II.
43. At the end of the December 19, 1986 meeting, Pam Smeltzer, an employee of
Pennsy Supply, was given the MRA agreements and extra signature pages signed by Mrs.
Mumma, Lisa, and Bob.
44. Linda signed both MRA agreements around Christmas, 1986.
45. Barbara signed both MRA agreements and remembers signing some documents
prior to December 31, 1986, in connection with the liquidations.
46. Mrs. Mumma explained that she would not have gone forward with the
liquidation of Pennsy Supply and Kim Company if Bob had refused to sign the two tenancy-in-
common agreements on December 19 1986.
47. Section 3(e) of each of the MRA agreements provides in part as follows:
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.
48. Section 4 of each of the MRA agreements provides as follows:
General, overall management of the Premises and of all
matters arising out of or in connection with the Premises,
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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 shall be
by majority (in interest) vote and in writing unless
otherwise indicated.
49. Section 3(b) applies to the situation where a co-owner desires to independently sell
his or her interest. In this situation the other family members possess a right of first refusal to buy
the interest and preclude the entry of a stranger into the ownership of the properties.
50. In contrast, Section 4 was meant to govern situations where a majority-in-interest of
the tenants-in-common desire to sell one or more pieces of property owned by the tenancies-in-
common. Under this section, the will of the majority prevails.
51. Section 14 of the MRA agreements requires that the individual tenants-in-common
execute documents or perform other necessary actions to carry out the intent of the agreement or
to effectuate decisions of the majority in interest.
52. In addition to the execution of the MRA agreements on December 19, 1986, the
shareholders of Kim Company and Pennsy Supply, including Bob, executed a bill of sale
transferring certain real and personal property of Kim Company and Pennsy Supply to themselves
in proportion to their respective shareholdings in the two corporations.
53. On December 19, 1986, Bob in his capacity as Vice-President of Kim Company and
Pennsy Supply, also executed a joint deed transferring all real estate owned by Kim Company and
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Pennsy Supply to their shareholders as tenants-in-common under the MRA I and MRA II
agreements.
54. In addition to the master deed, Bob, in his capacity as Vice-President of Pennsy
Supply, also executed on December 19, 1986, four deed transferring various rights and interests
from Pennsy Supply to Hummelstown Quarries, Inc.
55. The shareholders took possession of the transferred property as tenants-in-
common under the fictitious name of Mumma Realty Associates.
56. A fictitious name certificate and a certificate of incorporation for Mumma Realty
Associates, Inc. was filed with the Secretary of State on December 19, 1986.
57. A certificate of incorporation for Hummelstown Quarries, Inc. was also filed with
the Secretary on December 19, 1986.
58. Pursuant to Section 1 of the MRA agreement, Mumma Realty Associates, Inc.
was appointed manager of both of the properties governed by MRA I and MRA II.
59. Mrs. Mumma and Lisa are the officers and directors of Mumma Realty
Associates, Inc.
60. Mrs. Mumma is the sole shareholder of Mumma Realty Associates, Inc.
61. On December 19, 1986, Bob executed a power of attorney (the MRA power of
attorney) pursuant to Section 14 of the MRA agreements.
62. The MRA power of attorney named the other tenants-in-common, including the
Estate, Mrs. Mumma and Lisa, as Bob's attorneys in fact to execute on his behalf any deeds or
other instruments necessary and desirable to carry out any of the purposes under the MRA
agreements.
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64. Mrs. Mumma, Lisa, and Linda executed similar powers of attorney. Mrs.
Mumma and Lisa also executed a power of attorney as executrices of the Estate.
65. The purpose of the MRA powers of attorney signed by the tenants-in-common
was to enable a majority in interest of the tenants to proceed with transactions pursuant to the
majority control provisions of Section 4 of the MRA agreements and effectuate decisions with
or without the subsequent cooperation of an individual tenant.
66. The MRA power of attorney signed by Bob on December 19, 1986, was not
connected with or motivated by Bob's upcoming trip to Colorado. (Klein Cross, Vol. I, pp. 91-
92). When Mr. Skinner prepared the power of attorney, he was not aware that Bob would be out
of town in late December and early January.
67. One of the reasons powers of attorney were need for all of the tenants-in-
common was because Bob was seldom in town, Barbara was often unavailable, and Linda was
living in St. Louis.
68. Following the execution of the MRA agreements in December, 1986, Gerald T.
Brawner, a partner at Morgan, Lewis & Bockius, was asked to review the MRA agreement and
make appropriate changes or revisions.
69. On March 11,1987, Mr. Brawner sent the revised MRA agreements with a cover
memorandum to the tenants-in-common and to Mr. Klein for their review and comment.
70. On April 21, 1987, Mrs. Mumma, Lisa, Bob, and Barbara met with Mr. Brawner
at the offices of Pennsy Supply to review the revised agreements among tenants-in-common.
71. Following the April 21, 1986 meeting, Mr. Brawner prepared new revised
agreements among tenants-in-common and sent them to Lisa.
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72. On June 7, 1987, upon Lisa's request, all of the tenants-in-common signed the
revised agreement except for Bob. An acknowledgement of the agreement was taken by Charlie
Lear, a notary at Pennsy Supply.
73. The possibility of Bob making an offer to purchase Pennsy Supply became a
subject of discussion in the autumn of 1986.
74. On November 10, 1986, Lisa sent Mr. Hadley a cover letter and a copy of a draft
letter to Bob which explained that the executrices were willing to consider an offer from Bob
for the purchase of Pennsy Supply.
75. Mr. Klein explained to Lisa that the executrices had to be careful when giving
Bob an opportunity to buy the business that they did not violate their duties as fiduciaries to
obtain a fair price for the business and that an arm's length transaction existed.
76. A decision was made not to send the letter drafted by Lisa and Mr. Klein.
77. On November 20, 1986, Mrs. Mumma sent Bob a different letter from the one
drafted by Lisa and Mr. Klein which invited Bob to make an offer for Pennsy Supply.
78. Under the instruction of the executrices, Mr. Hadley provided Bob with certain
financial information which he desired in reference to the company.
79. Mr. Hadley provided Bob with extensive financial information regarding Pennsy
Supply in a letter dated March 2, 1987. Bob was previously provided with depreciation
schedules for equipment and facilities.
80. In March, 1987, a meeting was held at Mrs. Mumma's home to give Bob the
opportunity to present his offer to purchase Pennsy Supply. Mrs. Mumma, Lisa, Bob, and Mr.
Hadley were all present at the meeting.
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81. Mrs. Mumma, Lisa, and Mr. Hadley expected Bob to make an offer for the
purchase of Pennsy Supply at the meeting because Bob had already received the financial
information he had requested in reference to the company.
82. At the beginning of the March, 1987 meeting, there was a discussion of an
appropriate price for Pennsy Supply. Bob explained that he was interested in buying Elco
Concrete, a wholly-owned subsidiary of Pennsy Supply.
83. At the March, 1987 meeting, Mrs. Mumma informed Bob that she was not
interested in selling Elco separately from the rest of Pennsy Supply.
84. Bob left the meeting and never made an offer to purchase Pennsy Supply or Elco
Concrete.
85. During March or April of 19987, the executrices began considering the sale of
Lot 1 - B in Lemoyne, Pennsylvania. The lot was owned by Mumma Realty Associates under
the MRA I agreement.
86. Lot 1-B was one of two adjacent parcels of realty owned by the Mumma family
interests in Lemoyne. The second lot was owned by High Spec, Inc., a corporation owned 50
percent by Bob and 50 percent by the Estate.
87. Mrs. Mumma told Bob that Taco Bell had approached the executrices about
buying Lot 1-B.
88. Bob explained to Mrs. Mumma that the executrices should not accept less than
$500,000 as the asking price for Lot 1-B.
89. Taco Bell was not willing to pay the asking price of$500,000 for Lot 1-B.
23
90. Subsequently, the executrices were approached by Tom Flynn, a developer from
Camp Hill, Pennsylvania who was interested in Lot 1-B. Mr. Flynn agreed to the price of
$500,000 quoted by the executrices for Lot I-B.
91. Bob explained to Mrs. Mumma in a telephone conversation that $500,000 would
be the asking price for Lot 1-B (the middle lot) and $600,000 would be the asking price for the
adjacent comer Lot 2. Bob thought that the middle lot should be sold before the corner lot.
92. During a trip to Europe in April, 1987, Bob told Mrs. Mumma that he had heard
that she sold Lot 1-B to Tom Flynn. Mrs. Mumma explained to Bob that she had negotiated the
lot, but no settlement had been reached with respect to the lot at that time. During this
conversation, Bob did not voice any protest or objection to the sale of Lot 1-B.
93. After the April, 1987 trip to Europe, Mrs. Mumma and Lisa learned tht Bob
indicated the he would not go along with the sale of Lot 1-B to Mr. Flynn.
94. On June 30, 1987, a meeting was held at Barbara's house to discuss the sale of
Lot 1 - B.
95. Mrs. Mumma, Lisa, Linda, Bob, and Barbara attended the June 30, 1987 meeting.
96. At the June 30, 1987 meeting, Lisa told the family embers about the proposed sale
of Lot 1-B to Mr. Flynn for the price of$500,000.
97. During the June 30, 1987 meeting, Lisa also explained to the family members the
reason they needed to execute new powers of attorney in connection with the sale of Lot 1-B.
By executing new powers of attorney, the family members could avoid filing the MRA I
agreement which would have been required had the MRA powers of attorney been used to
complete the sale of Lot 1-B.
24
98. At the June 30, 1987 meeting, Bob had no objection to the $500,000 asking price
for Lot 1-B and said that the price was a fair one. (Mrs. Mumma Direct, Vol. II, p. 206, Lisa
Direct, Vol. Ill, pp. 427-28, Bob Direct, Vol. 111, p. 650, Bob Cross, vol. IV, p.701).
99. On June 30, 1987, in the middle of discussions regarding the sale of Lot 1-B,
Bob stated that he wanted a right of first refusal as to Pennsy Supply.
100. After Bob brought up the subject of a right of first refusal as to Pennsy Supply,
Barbara asked Bob if the family members could resolve the sale of Lot 1-B first, and then
discuss the right of first refusal issue.
101. Bob agreed to sign the necessary documents for the sale of Lot 1 -B to Mr.
Flynn.
102. On June 30, 1987, each of the family members signed a power of attorney.
(Exhibit P-15, Exhibit P-13). The powers of attorney signed by Kim, Lisa, Barbara, and Linda
were identical and were provided to Lisa by Mr. Brawner.
103. Bob's power of attorney was different from the other family members because
Bob insisted upon the removal of paragraph 4 from his power before he would sign it. After the
meeting, Lisa returned to the offices of Pennsy Supply and had the power retyped without
paragraph 4. The revised power was then hand delivered to bob who signed the power on the
same day as the other family members.
104. All of the powers of attorney signed by the family members on June 30, 1987,
were notarized.
105. After Bob agreed to sign for the sale of Lot 1-B, the discussion at the June 30,
1987, meeting turned to Bob's request for a right of first refusal as to Pennsy Supply.
25
106. Mrs. Mumma and Lisa told Bob at the June 30, 1987 meeting that they were not
willing to grant him a right of first refusal as to Pennsy Supply without first speaking to their
lawyers and accountants.
107. At the June 30, 1987 meeting, there was no discussion of the duration, terms,
contingencies or other specifics regarding Bob's proposed right of first refusal.
108. After the June 30, 1987 meeting at Barbara's house, Lisa told Mr. Klein that Bob
had asked for a right of first refusal as to Pennsy Supply. Lisa asked Mr. Klein for his advice as to
whether the executrices should grant Bob such a right. (Klein Direct, Vol. I, pp.53-54).
109. Mr. Klein responded to Lisa's question by stating that the executrices could give
Bob the first opportunity to bid on Pennsy Supply, but Mr. Klein stressed that the executrices
should not give Bob a right of first refusal as Pennsy Supply. (Klein Direct, Vol. I, pp. 54-56, Lisa
Direct, Vol. I11, p. 437). Mr. Klein explained that giving Bob such a right would jeopardize
the marketability of the company. Potential purchasers of the company would be unwilling to
incur the costs of due diligence if Bob had the ability to simply match whatever offer they put
together and but the company himself. By granting Bob a right of first refusal, the executrices
could handicap themselves. The executrices would eliminate the chance of selling Pennsy Supply
to anyone but Bob, and as a result could potentially breach their fiduciary duties to the Estate.
110. In addition to Mr. Klein, Lisa consulted with Mr. Hadley, who also strongly advised
against giving Bob a right of first refusal.
111. Mrs. Mumma also talked with Mr. Klein and Mr. Hadley about whether Bob should
be given a right of first refusal. Both Mr. Hadley and Mr. Klein advised against giving Bob the
right.
26
112. Subsequent to the discussions Mrs. Mumma and Lisa had with Mr. Klein and Mr.
Hadley, Mrs. Mumma explained to Linda, Bob, and Barbara, that following the advice of their
advisors, the executrices were unwilling to give Bob a right of first refusal as to Pennsy Supply.
113. Early in July, 1987, Bob telephoned Lisa and demanded that the power of
attorney he executed on June 30, 1987 be returned.
114. Following a discussion with Mr. Klein, Lisa returned Bob's June 30, 1987 power
of attorney.
115. The sale of Lot I-B was closed on or about July 7, 1987. The executrices used
Bob's original MRA power of attorney, in addition to excerpts of the MRA I agreement
provided by Mr. Skinner, to close the sale of Lot 1-B instead of using Bob's June 30, 1987
power of attorney.
116. During the late summer and early fall of 1988, the executrices were approached
and began discussions with a foreign company interested in purchasing Pennsy Supply.
117. On November 2, 1988, Bob sent a letter to Barbara in which he asserted a right of
first refusal as to Pennsy Supply. Bob claimed the right stemmed from the June 30, 1987
meeting at Barbara's house. Lisa also received a copy of the letter.
118. Prior to the November 2, 1988 letter, Bob had never asserted to the executrices
that he possessed a right of first refusal as to Pennsy Supply.
119. Following receipt of Bob's letter of November 2, 1988, Barbara had her attorney
draft a response to Bob, which she never sent, explaining that Barbara did not believe that Bob
was granted a right of first refusal as to Pennsy Supply as a result of the June 30, 1987 meeting.
It was Barbara's understanding that Mrs. Mumma decided not to give Bob a right of first refusal
when her attorney told her that granting such a right to Bob would dissuade other potential
purchasers from making offers.
27
i
120. Linda never gave Bob a right of first refusal to Pennsy Supply at either the June 30,
1987 meeting or at any other time.
(The following facts together with subheadings were found by .Judge Sheeley in the matter of
ROBERT M. MUMMA, II Plaintiff v. PENNSY SUPPLY, INC, Defendant, Cumberland County
Court of Common Pleas, dockected at NO. 99-2765 EQUITY TERM, of which official notice is
taken.)
121. According to the records of the Commonwealth for Nine Ninety-Nine, Inc., on May
3, 1961, a corporation known as Pennsy Supply, Inc. which had been incorporated on March 20,
1958, merged into a corporation known as Fiala Crushed Stone Corporation, which had been
incorporated on November 5, 1958.
122. As a result of the merger, on May 3, 1961, Pennsy Supply, Inc., ceased to exist as the
name of a corporation recognized in the records of the Commonwealth.
123. According to the records of the Commonwealth for Nine Ninety-Nine, Inc.,
immediately after the merger, on May 3, 1961, Fiala Crushed Stone Corporation changed its name
to Pennsy Supply Inc.
124. On December 29, 1961 the two shareholders of Pennsy Supply Inc., Kim Company
and Jerry T. Simpson, entered into a shareholders' agreement, which limited the ability of current
shareholders to transfer shares without first offering the shares for sale to the corporation.
125. Share certificates issued after this agreement bear a restrictive legend, which
identified the applicability of the restrictions imposed by the shareholders' agreement of December
29, 1961.
28
126. On August 1, 1963, the two shareholders, Kim Company and Jerry T. Simpson,
entered into a termination agreement, which provided, in pertinent part: "[S] aid parties hereto
agree that said shareholder's Agreement of December 29, 1961 between Kim [Company] and
[Jerry T.] Simpson is hereby cancelled, annulled and terminated."
127. The termination agreement further provided that "upon transfer of all of the shares
of stock of [Jerry T.1 Simpson to [Robert] Mumma, [Plaintiffs father,] all rights, obligations and
conditions of said Agreement shall cease."
128. On August 1, 1963, Jerry T. Simpson transferred a total of 1,250 shares in Pennsy
Supply Inc. to Robert M. Mumma.
129. On August 5, Robert M. Mumma transferred 314 shares in Pennsy Supply Inc. to
Plaintiff and Plaintiff was issued a share certificate representing those shares.
130. Plaintiffs share certificate does not bear the restrictive legend that appeared on share
certificates issued prior to August 1, 1963, and after the execution of the shareholders' agreement.
131. According to the records of the Commonwealth for Nine Ninety-Nine, Inc., on May
31, 1979, a corporation known as Tri-Ms. Inc. merged into Pennsy Supply Inc.
132. According to the records of Commonwealth for Nine Ninety-Nine, Inc., on August
31, 1981, a corporation known as Four Forty One Corporation merged into Pennsy Supply, Inc.
133. Although the merger of May 31, 1979, refers to Pennsy Supply Inc., and the merger of
August 31, 1981, refers to Pennsy Supply, Inc., both mergers involved the same corporation, the
corporation which had been originally known as Fiala Crushed Stone Corporation and which had
been incorporated on November 5, 1958.
29
134. Thereafter, although the records of the Commonwealth for Nine Ninety-Nine, Inc.,
refer solely to Pennsy Supply, Inc., those references are to the same corporation previously
identified as Pennsy Supply Inc., the corporation which had been originally known as Fiala
Crushed Stone Corporation and which had been incorporated on November 5,1958.
135. On October 9, 1981, Ten-O-One, Inc., was incorporated as a wholly - owned
subsidiary of Pennsy Supply, Inc.
136. According to the records of the Commonwealth for Nine Ninety-Nine,Inc., on
January 4, 1982, Pennsy Supply, Inc., changed its name to Nine Ninety-Nine, Inc.
137. On January 4, 1982, all outstanding share certificates bearing the name Pennsy
Supply, Inc., or any derivation thereof, were replaced with new share certificates bearing the name
Nine Ninety-Nine, Inc.
138. Plaintiff was issued a new share certificate bearing the name Nine Ninety-Nine,
Inc., to replace his share certificate bearing the name Pennsy Supply, Inc.
139. . Plaintiff retained possession of the share certificate, which bore the name Pennsy
Supply Inc. and which had represented 314 shares in Pennsy Supply, Inc.
140. On January 4, 1982, Ten-O-One, Inc., a wholly-owned subsidiary of Nine Ninety-
Nine, Inc., changed its name to Pennsy Supply, Inc.
141. Pennsy Supply, Inc., formerly known as Ten-O-One, Inc., continued to operate as a
wholly-owned subsidiary corporation of Nine Ninety-Nine, Inc.
142. In July 1993, pursuant to a majority vote of shareholders, all shares of Nine Ninety-
Nine, Inc., along with other corporate assets denominated collectively as the "Pennsy Supply
Businesses," were sold to another corporation CRH PLC.
30
143. On March 17, 1995, Plaintiff joined the sale of the "Pennsy Supply Businesses"
through the execution of an "irrevocable" consent and joinder.
144. On March 17, 1995, Plaintiff sold his outstanding shares in Nine Ninety-Nine,
Inc., to CRH plc and received approximately $3 million in proceeds from the sale.
145. On March 17, 1995, Plaintiff transferred the shares and surrendered the share
certificate representing his share in Nine Ninety-Nine, Inc.
146. As of March 17, 1995, Plaintiff retained no ownership interest in Nine Ninety-
Nine, Inc.
(The following facts were found by Judge Sheeley following hearings held July 25-26, 1993
following a request for preliminary injunction filed by Robert M. Mumma, in the matter of
ESTATE OF ROBERT M. MUMMA, Cumberland County Court of Common Pleas, Orphan's
Court Division . No. 21-86-398 of which official notice is taken. (Separate Headings found in
original findings of fact deleted.))
147. Robert M. Mumma(hereinafter the Decedent) died in April 12, 1986.
148. His wife, Barbara McK. Mumma (hereinafter Barbara McK.) and his daughter, Lisa
M. Morgan (hereinafter Lisa), are the executrices of the Estate of the Decedent and trustees of
the Marital Trust under the will.
149. The Decedent's son, Robert M. Mumma, Jr. (hereinafter Robert), filed a disclaimer
under his father's will on January 12, 1987.
150. The effect of the disclaimer is that Robert is treated as if he pre-deceased his
father. Thus Robert's children would receive his interest the Decedent's will.
31
151. Robert M. Frey, Esquire (hereinafter Guardian), was appointed as guardian ad
litem to represent the interest of Robert's minor children on December 29, 1988.
152. One June 20, 1989, Robert filed a petition to revoke his disclaimer.
153. This court allowed Robert to revoke his disclaimer on March 21, 1991.
154. The effect of the revocation is that Robert will no longer be treated as if he pre-
deceased his father. Thus, Robert, rather than his children, will take under the Decedent's will.
155. Guardian plans to appeal the March 21, 1991 decision to the Pennsylvania
Superior Court on behalf of the minor children.
156. Guardian's standing is dependent of the Superior Court's ruling on the court's
March 21, 1991 decision.
157. Lisa and Barbara McK. as officers of the corporations entered into negotiations
to sell various assets and properties comprising the Pennsy Supply businesses to CRH
Industries in the latter part of 1988.
158. CRH offered to buy Pennsy Supply, but the deal fell through because of threats
of litigation made by Robert costing Pennsy Supply approximately $20 million dollars.
159. In the summer of 1989, Robert made an offer of his own to buy the Pennsy
Supply business.
159. On December 9, 1991, Robert made an offer to enter negotiations for the
purchase of the Pennsy Supply businesses for$35 million dollars.
160. The terms of the December 9 offer include:
a) Robert would own all stock and assets of Nine Ninety-Nine, Inc., Pennsy
Supply, Inc., Hummelstown Quarries, Inc., Newport Quarry, Bender's Quarry, Silver Spring
Quarry, Lebanon Rock, Inc., and Mumma Realty.
32
b) Robert would own these companies and their assets free and clear of all existing liens,
encumbrances, and liabilities, including long term contracts, employment contracts, executive
covenants, option rights and any rights of first refusal to which they may be subject.
C) The purchase agreements would contain representations and warranties with non-
compete agreements of Lisa and Barbara McK. Mumma.
d) Such purchase price of$35 Million dollars is subject to adjustment for any "material
adverse" change of such assets since the date of the Decedent's death.
C) Robert would own a right of first refusal in Union Quarries with the agreement that
his mother's power to withdrawal from the marital trust would not extend to Union Quarries.
0 Robert would be paid one-fourth of the estate and trust assets either in cash or in
property in such manner as is satisfactory to Robert, offsetting the purchase price.
g) The Estate and Marital Trust will indemnify Robert against subsequently developing
tax liens or liabilities and any environmental clean-up responsibilities relating to activities prior to
the closing.
h) All parties will discontinue all legal actions presently pending.
161. On December 30, 1991, Lisa and Barbara McK. as corporate officers rejected
Robert's offer in a formal reply, the basis of which was; the amount offered, the assets involved, the
status of the litigation between parties and other pending claims.
162. On March 24, 1992, this court held in a declaratory judgment action in equity that
Robert was never given a right of first refusal to purchase the Pennsy Supply businesses. Barbara
McK. Mumma and Lisa Morgan, individually and as Executrices of the Estate of Robert M.
33
Mumma deceased and Linda M. Roth plaintiffs v. Robert M. Mumma. It and Barbara
McClure. Defendants. No. 66 Equity 1988, Opinion and Order filed March 24,1992.
163. During the Spring of 1992, Lisa and Barbara McK. went forward and tried to
Market the Pennsy Supply businesses to several other people.
164. In the summer of 1992, negotiations resumed with CRH.
165. As of January 1, 1993, Lisa and Barbara McK. were strictly dealing with CRH
because they were far along enough that they did not consider selling to other potential buyers.
166. January 5, 1993, Lisa and Barbara McK. entered into a confidentiality agreement.
167. As of May 8, 1993, Lisa and Barbara McK. entered into a letter of intent.
168. The terms of the sale include:
a) In exchange for the $32 million dollars from CRH, these five separate business
interests were sold;
i) stock in Nine Ninety-Nine, Inc., the holding company for the
Pennsy Supply businesses,
ii) stock in Hummelstown Quarry, the corporation that actually holds the
real estate which Pennsy Supply leases,
iii) one hundred per cent ownership of Benders Quarry in Mt. Holly Springs,
iv) the Paxton Street yards, the main office building in Harrisburg, and
V) for an additional $2 Million dollars, DRH would be given 120 days from
the date of closing to exercise an option to buy a 50% in Lebanon Rock, Inc., raising the total
purchase price to $34 million dollars.
34
b) The money from the sale would be allocated over the five separate business
interests and distributed according to each shareholder's percentage of ownership with an
escrow account for dissenting shareholders.
C) CRH insisted that a corporation be formed so that they could buy the five
business interests as a whole from a single seller in order to maximize tax benefits and to avoid
law suits with Robert over the sale of each interest. Kodie Corporation was formed to comply
with this demand.
d) By purchasing the separate interests through Kodie Corporation, CRH assumes
all of the liabilities of each individual interest.
e) Non-business assets were retained by Pennsy Supply in a proportion to the stock
owners' percentage of ownership for future development.
f) CRH agreed to honor existing long term contracts including employment
contracts protecting long term employees and a cap on CRH's right of indemnification.
g) CRH would own no interest in Union Quarry and could only obtain a 50%
interest in Lebanon Rock by paying an additional $2 million dollars.
h) The purchase price was fixed at $32 million dollars, no adjustments, no
financing, and no pledging of Pennsy Supply's assets, the full amount in cash.
168. Lisa put $4 million dollars in escrow for CRH, $2 million dollars for breaches of
warranty of covenants for the businesses and $2 million dollars for family litigation.
169. As owners of Kodie Corporation, Lisa and Barbara McK. received noseparate
consideration,employment contract or consulting contract, or separate benefits.
35
170. The closing of the sale was set up into two stages: Stage I was schedules for July
8, 1993, and completion of the sale closing; Stage II was schedules at least ten days after the
notice of Stage I was mailed.
171. Stage I was scheduled for July 8, 1993, but no assets would be transferred until
there was confirmation that CRH released the $32 million dollars.
172. On July 9, 1993, notices were mailed to the participating stockholders, who, at
that time, were Robert and Barbara McClure.
173. By way of power of attorney, Barbara McClure signed on as a participating
stockholder leaving Robert as the only non-participating shareholder.
174. Notice was sent to all shareholders pursuant to Business Corporation Law (BCL),
15 Pa. C.S.A. 1766(b), and since the minor children were not shareholders, no notice was sent
to Guardian.
175. Stage II was scheduled for July 20, 1993, in order to comply with BCL
regulation, 15 Pa. C.S.A. 1766(c).
176. Robert actually received his notice of Stage I of the sale closing on July 12, 1993.
177. Guardian learned of the Stage I closing on Friday, July 16, 1993, from Robert
who encouraged Guardian to file a petition for an ex parte preliminary injunction.
178. There was an understanding between Robert and Guardian that Guardian would
file for the preliminary injunction which Robert would later join and Robert would once again
disclaim any interest under his father's will.
179. Guardian filed a petition on Monday, July 19, 1993, for a preliminary injunction
seeking to enjoin the sale of Nine Ninety-Nine, Inc., and Hummelstown Quarry and a rule to
show cause why the sale of those assets should not be approved by this court.
36
180. Robert joined in the petition July 21, 1993, but to date has not disclaimed his
interest in his father's will.
181. A copy of the petition was not served on Lisa, Linda, Barbara McK., or Barbara
McClure.
182. On July 21,1993, this court denied the ex parte injunction but set a date for a
hearing on July 26, 1993.
183. Stage II of the sale closing was completed July 21, 1993, and they did not learn
of the petition for the injunction until after the closing.
184. A shareholders' meeting was held July 22, 1993 where Stage I and II of the sale
closing was ratified by a majority of the shareholders.
185. The proceeds from the sale were allocated over each of the five business interests
and distributed according to each shareholder's percentage in ownership of those interests with
an escrow account for dissenting shareholders.
(The following facts together with subheadings were found by Judge Robert Matemsom in the
matter of BARBARA McK. MUMMA AND LISA M. MORGAN, individually and as
executrixes of the ESTATE OF ROBERT M. MUMMA, deceased, and as Co-Trustees of the
Residuary Trust under the Last Will of Robert M. Mumma, deceased and HIGH-SPEC, INC., a
dissolved Florida corporation, Plaintiffs v. ROBERT M. MUMMA, II, and HIGH-SPEC, INC.,
a dissolved Florida corporation, Defendants, Circuit Court of the Nineteenth Judicial Circuit in
and for Martin County Florida docketed at CASE NO. 89-503, of which notice is taken)
History of this Litigation
37
186. On July 26, 1993, this Court, through Judge Marc Cianca, entered a Final Judgment
which dissolved the Defendant Florida Corporation, High-Spec, Inc. and determined among other
things that Defendant Robert Mumma, II caused the illegal distribution of certain real property to
himself and is liable to High-Spec, Inc. in the amount of $450,000.00 plus prejudgment interest
from December 21, 1989 in the amount of$189,887.67.
187. The Court also required the directors of High-Spec, Inc. to prepare a final
accounting and wind up and liquidate the corporation.
188. By order on Defendants' Motion for New Trial or Rehearing to Alter or Amend
Judgment dated February 28, 1994, the Court suspended the running of interest on the prior July
26, 1993 Final Judgment and made certain amendments to debts created for the acquisition of the
corporation's assets, finding the corporation was owed the following debts created for the
acquisition of the corporation's assets:
A. To the Estate of Robert Mumma, Sr., the amount of$94,526.51;
B. To Mumma Realty Associates the amount of$330,320.91;
C. To Robert M. Mumma, lI, the amount of$415,229.28.
189. By Order Re: Case Disposition dated June 15, 1998, this Court entered a final order
closing further proceedings in this action on the grounds that the parties did not pursue the case
diligently.
190. Both parties file appeals from the June 15, 1998 order.
191. By an opinion dated June 9, 1999 entered by the Fourth District Court of Appeal of
the State of Florida in Mumma v. Mumma 734 So. 2d 571 (Fla. 4`h DCA 1999) the appellate court
38
reversed the order of Judge Schack closing the case and determined that the 1993 partial Final
Judgment remains in force and need not be revisited on remand. The appellate court also
determined that the only issues left to be decided concerned the final accounting and winding up of
the corporation as well as attorneys' fees and costs.
192. By separate order also dated June 9, 1999, the appellate court granted the Motion by
Lisa Mumma Morgan and Barbara McK. Mumma, individually and as Co-Executrixes of the
Estate of Robert M. Mumma, deceased, and on behalf of High-Spec, Inc. for attorneys' fees on
appeal conditioned upon them being prevailing parties on the merits.
193. Following remand, a trial was held on the remaining issues identified by the
appellate court in its opinion. During this time, the trial transcript shows that Defendant Robert
Mumma's counsel raised, for the first time, the existence of a shareholder's agreement which
Judge Bryan refused to entertain because it had not been raised in the 1993 trial. (2000 Trial
Transcript, p. 126).
194. The trial resulted in a Final Judgment entered by Judge Bryan of this Court on
March 15, 2000. The Final Judgment recited the entry of the Final Judgment of Judge Cianca in
1993 and adopted previous findings of the Court.
195. The Final Judgment also determined various issues relating to the final accounting
of the corporation and distribution of the corporate assets.
196. In this 2000 Final Judgment, the Court declined to award interest on the judgment
subsequent to July 26, 1993 and denied Plaintiffs' Motion for Attorney's Fees at both the appellate
and lower court levels.
197. Defendants filed an appeal from this Final Judgment, and Plaintiffs filed a cross-
appeal. In their brief, Defendants did not assign as error Judge Bryan's refusal to consider the
39
alleged shareholder's agreement in determining ownership by Mumma Sr's estate of 50% of the
shares of High-Spec, Inc. stock.
198. By an opinion dated March 28, 2001 entered by the Fourth District Court of Appeal
for the State of Florida in Mumma v. Mumma. 780 So. 2d 1001 (Fla. 4`h DCA 2001), rev, den. 797
So. 2d 587 (Fla. 2001), the appellate court modified that portion of the March 15, 2000 Final
Judgment which suspended interest after the 1993 Final Judgment. The appellate court also modified
the trial court's order denying Plaintiffs' motion for attorneys' fees for fees incurred in the trial court
and previous appeal and remanded the matter back to the trial court to determine such an award.
199. The appellate court also issued a separate order awarding appellate attorneys' fees to
the Plaintiffs for this second appeal and ordered the trial court to determine the amount of these fees.
200. On April 27, 2001, Defendants filed a Notice to Invoke Discretionary Jurisdiction to
the Supreme Court for review of the opinion of the Fourth District Court of Appeal.
201. On October 5, 2001, the Supreme Court of Florida denied review and granted
Respondents' (i.e. Plaintiffs') Request for Attorneys' Fees on Appeal and made an award in the
amount of$2,500.00.
202. Plaintiffs' Motion for entry of Amended Final Judgment Following Appellate review
seeks the entry of an Amended Final Judgment consistent with the appellate decisions of the Fourth
District Court of Appeal and Supreme Court of Florida in 2001 and specifically requests:
A. Reasonable attorneys' fees for services rendered in the lower court proceedings;
B. Reasonable attorneys' fees for services rendered in the first appeal from this
Court's 1998 Order closing the case;
40
C. Reasonable attorneys' fees for services rendered for lower court proceedings
following remand culminating in March 15, 2000 trial;
D. Reasonable attorneys' fees for services rendered in the appeal of the Court's March
15, 2000 Final Judgment;
E. Interest on the 1993 Final Judgment to the date of entry of the Amended Final
Judgment;
F. Reasonable attorneys' fees in the amount of$2,500.00 awarded by the Supreme
Court of Florida in its October 5,2001 decision;
G. Such further adjustment to the final accounting as may be appropriate in light of the
appellate decisions;
H. An award of costs as may be appropriate, including costs for appellate work and at
the trial court;
203. On August 15, 2002, Plaintiffs served an Amendment to Plaintiffs' Motion for entry
of Amended Final Judgment Following Appellate Review to request the award of prejudgment
interest on the attorneys' fees warded by both the Fourth District Court of Appeal and Supreme
Court of Florida from the time of the award of those fees in those appellate courts. Plaintiffs
subsequently filed an Amended Motion for Attorney's Fees dated May 8, 2001 seeking lower court
and appellate attorneys' fees.
204. On November 18, 2003 Plaintiffs served their Motion for Appointment of a Receiver
to take possession of High-Spec's certificate of deposit funds in Pennsylvania and to pay the
corporate debts and make appropriate distributions according to the amended final judgment.
205. On June 6, 2003, Defendant, Mumma II file his Motion to Dismiss or in the
Alternative for a New Trial Due to Recently Discovery Evidence of Lack of Jurisdiction and Fraud
41
upon the Court. In his motion Defendant claimed that the Plaintiffs are not shareholders of High-
Spec, Inc. and alleged in paragraph 14 under "newly discovered evidence" that a shareholder's
agreement existed. By order entered January 16, 2004, Judge Angeles denied this motion.
Defendants Mumma and High-Spec, Inc. timely appealed. Their brief did not raise the shareholder's
agreement but instead argued on other grounds that the circuit court erred in denying the motion.
The Fourth District Court of Appeal affirmed the January 16, 2004 order per curiam on May 11,
2005, and issued a mandate on July 8, 2005. The Fourth District also issued an order awarding
Plaintiffs their appellate attorneys' fees. Following remand Plaintiffs filed Plaintiffs' Motion to
Assess Attorneys' Fees on Third Appeal dated August 5, 2005.
206. On December 16, 2004, Defendant Mumma, acting pro se at the time, filed his
Motion to Dismiss or Stay in which he contended that this action should be dismissed because the
inventory in his father's ancillary estate in Florida, which the Court determines was dismissed in
1999, failed to include the shares of High-Spec, Inc. stock as an asset. He also alleged that the
shares of stock in High-Spec, Inc. which were distributed from his father's Pennsylvania estate to
his Residuary Trust on January 1, 2002, were subject to a shareholder's agreement, an unsigned
copy of which he attached to his motion. Defendant Mumma II had previously raised this
shareholder's agreement in the 2000 trial before Judge Bryan and again in his June 6, 2003 Motion
to Dismiss. He asked that this action be stayed pending the outcome of a related Pennsylvania court
action he had filed to determine the enforceability of this shareholder's agreement.
207. On May 24, 2005, Plaintiffs served their Motion to Add Additional Party Plaintiffs.
In this motion, they sought to add themselves as additional Plaintiffs in this action in their capacities
as Co-Trustees of Robert Mumma's Residuary Trust contained in his will. Their motion alleged that
the estate of Robert Mumma, Sr., had, on January 1, 2002, distributed its interest in the High-
42
Spec, Inc. shares to the decedent's Residuary Trust of which they were Co-Trustees. Because
Defendant Mumma had contended that Plaintiffs, as Co-Executrixes of this estate, lacked standing
to maintain this action they sought to make the standing issue moot by joining themselves in their
capacities as Co-Trustees as well. This motion was granted by the Court, after which the Plaintiffs,
as Co-Trustees, filed their Appearance by Trustees of Residuary Trust and Consent to Plaintiffs'
Actions in which they consented to all actions of themselves as Co-Executrixes, the appointment of
a Receiver, the entry of an Amended Final Judgment, and to the award of attorneys' fees, cost, and
interest.
208. High-Spec, Inc. is hereby dissolved as a result of the shareholders being deadlocked
and the illegal distribution of a major corporate asset to Robert M. Mumma, II.
209. Robert M. Mumma II caused the illegal distribution of certain real property to
himself and is liable to the corporation, High Spec, Inc. for said distribution in the amount of
$450,000.00 plus prejudgment interest at the rate of Twelve (12%) per annum from December 12,
1989 until the date of the entry of the original Final Judgment on July 26, 1993 in the amount of
$189,887.67 for a total sum due and owing on the Final Judgment as of July 26,1993 of
$639,887.67. Judge Cianca's February 28, 1994 order suspending the running of interest on this
judgment, which was approved by this court in its Final Judgment entered March 15, 2000, has
since been modified on appeal to allow for interest. Therefore, this sum of $639,887.67 shall
constitute the "Judgment Sum." Plaintiffs, as Co-Executrixes of the estate of Robert Mumma, Sr.,
deceased, on behalf of Plaintiff High-Spec, Inc. shall recover this Judgment Sum from Defendant
Robert Mumma II, individually, whose Florida address is 6880 SE Harbor Circle, Stuart, FL
34996-1968, and this Judgment Sum shall bear interest from and after July 26, 1993 at the statutory
rate applicable to the judgment when entered in 1993 which, under §55.03, Fla. Star. (1993) was
43
12% per annum. The daily rate of post judgment interest at 12% per annum on the sum of
$639,887.67 after July 26, 1993 is $210,374 per day, and interest at the rateof 12%perannum shall
continue from that date through the entry of this Amended Final Judgment and thereafter on the
unpaid balance of the Judgment Sum until paid in full. The Cleric of this Court is hereby directed
and ordered to issue a writ of execution forthwith on the Judgment Sum plus all accrued interest to
the date of this order. The address of Plaintiff Lisa Mumma Morgan is 1140 N. Ocean Boulevard,
Gulfstream, FL 33483-7230, and the address of Plaintiff Barbara McK. Mumma is 4333 North
Ocean Blvd., Apt D-55, Delray Beach, FL 33483. The address of Plaintiff High-Spec, Inc. is c/o
Robert Mumma 11, its sole surviving director, 6880 SE Harbor Circle, Stuart, FL 34996-1968 and
also P.O. Box 58, Bowmansdale, PA 17008.
210. The corporation is liable for the following debts created for the acquisition of the
corporation's assets,real estate:
A. To the Estate of Robert Mumma Sr., the amount of$94,526.51;
B. To Mumma Realty Associates I, the amount of$330,329.91;
C. To Robert Mumma II, $415,229.28.
211. The loans by Robert M. Mumma, 11, or his controlled companies were used to build
his personal residence and are not valid corporate debts of High-Spec, Inc.
212. At the November 28 and 29, 2005 final hearing this Court also heard and received
evidence and arguments on Plaintiffs Motion to Appoint Receiver dated November 13, 2003. Upon
the evidence presented and arguments of counsel, this Court determines that the appointment of a
Receiver is necessary pursuant to §607.1432, Fla. Stat. 2005 in order to liquidate the Certificate of
Deposit in the name of Defendant High-Spec, Inc. currently on deposit with M&T Bank in
Harrisburg, Pennsylvania, and to collect and receive from the Plaintiffs whatever Plaintiffs, in their
44
capacities as Co-Executrixes, recover on the money judgment against Defendant Robert Mumma II
for $450,000 plus prejudgment and postjudgment interest, after Plaintiffs pay themselves such
attorneys' fees and costs as the Court may enter in a separate final judgment in the future. The
appointment of a receiver is also needed to wind down and pay the debts and obligations of High-
Spec, Inc. and distribute its assets.
FactualBackeround
213. In 1985, Robert M. Mumma ("Mumma I") and his son, Robert M. Mumma II
("Mumma II") formed a Florida corporation known as High-Spec, Inc.
214. They were the only two shareholders of the corporation. MummaI diedon April 12,
1986.
215. Mumma II commenced the instant action in 2004.
216. It seeks to enforce an alleged Share Restrictive Agreement ("agreement") between him
and his father.
217. An unsigned copy of the agreement is attached to the amended complaint.
218. Mumma II alleges that the signed agreement "may have been stolen with other
documents from a safe-deposit box at Dauphin Deposit Bank. The relevant sections of the
unsigned agreement provide as follows:
"4. TRANSFER OF SHARES UPON DEATH OF SHAREHOLDER. In the event of
the death of any Shareholder, it is agreed that all of the shares of the Corporation held by such
decedent at the time of his death shall be sold in the same manner as provided in Section 3 of this
Agreement in that the personal representative of the decedent shall first offer, within sixty (60) days
45
after his qualification as such personal representative , the shares owned by the decedent to the
Corporation and if the Corporation does not purchase such shares as provided in Section 3 of this
Agreement, then the personal representative shall thereupon offer such shares pro rata to the other
Shareholder or Shareholders of this Corporation who hereby agree individually to purchase such
shares in the manner as provided in paragraph 3 thereof.
In the event the offer is not made within said sixty (60) days period as herein provided, it shall be
deemed ipso facto to be made at the end of said sixty (60) day period and if, within thirty days
thereafter, the Corporation does not request delivery of the shares to it for purchase, the
Shareholders shall enforce delivery of such shares of the deceased Shareholder pro rata to them,
upon compliance of the Shareholders of the terms and conditions of this Agreement."
21.9. Mumma II asks us to require the Estate of Mumma I to sell its shares to him or the
corporation in accordance with the terms of the agreement.
220. Defendants' Motion for Summary Judgment rests upon their assertion that previous
litigation in Florida precludes Mumma II from bringing the instant action. They also content that
the action is time barred.
221. The Florida action at issue was commenced by the executrices of the Estate of Mumma
I against Mumma II in 1989.
222. It took 17 years, several hearings and as many appeals, before a final judgment was
entered.
221 The factual and procedural history was summarized in the Amender Final Judgment
filed in the Circuit Court of the Nineteenth Judicial Circuit in and for Martin County, Florida by
Judge Robert Makemson on February 17, 2006.
46
224, Judge Makemson's summarized the"History of the Litigation" as follows:
"1, On July 26, 1993, this court, through Judge Marc Cianca, entered a Final Judgment
which dissolved the Defendant Florida Corporation, High-Spec, Inc. and determined among other
things that Defendant Robert Mumma, II caused the illegal distribution of certain real property to
himself and is liable to High-Spec, Inc....
2. The Court also required the directors of High-Spec to prepare a final accounting and
wind up and liquidate the corporation.
3. By an opinion dated June 9. 1999 entered by the Fourth District Court of Appeal of
the State of Florida in Mumma v. Mumma, 734 So. 2d 571 (Fla 4`h DCA 1999) the appellate
court...determined that the 1993 partial Final Judgment remains in force and need not be revisited
on remand. The appellant court also determined that the only issues left to be decided concerned the
final accounting and winding up of the corporation as well as attorneys' fees and costs.
4. Following remand, trial was held on the remaining issues identified by the appellate
court in its opinion. During this time, the trial transcript shows the Defendant Robert Mumma's
counsel raised, for the first time the existence of a shareholder's agreement which Judge Bryan
refused to entertain because it had not been raised in the 1993 trial. (2000 'Trial Transcript,p. 126).
5. The trial resulted in a Final Judgment entered by Judge Bryan of this Court on March
15, 2000. The Final Judgment recited the entry of the Final Judgment of Judge Cianca in 1993 and
adopted previous finding of the Court,
6. Defendants filed an appeal from this Final Judgment, and Plaintiffs filed a cross-
appeal. In their brief, Defendants did not assign as error Judge Bryan's refusal to consider the
alleged shareholder's agreement in determining ownership by Mumma Sr's estate of 50% of the
shares of High-Spec, Inc. stock.
47
8. By an opinion dated March 28, 2001 entered by the Fourth District Court of Appeal for
the State of Florida in Mumma v. Mumma, 780 So. 2d 1001 (Fla. 4`h DCA 2001), rev. den. 797 So. 2d
587 (Fla. 2001), the appellate court modified that portion of the March 15, 2000 Final Judgment
which suspended interest after the 1993 Final Judgment,
9. Plaintiffs' Motion for entry of Amended Final Judgment Following Appellate Review
seeks the entry of an Amended Final Judgment consistent with the appellate decisions of the Fourth
District Court of Appeal and Supreme Court of Florida in 2001.
10, On June 6, 2003, Defendant Mumma II filed his Motion to Dismiss or in the
Alternative for a New Trial Due to Recently Discovered Evidence of Lack of Jurisdiction and Fraud
upon the Court. In his motion Defendant claimed that the Plaintiffs are not shareholders of High-
Spec, Inc. and alleged in paragraph 14 under "newly discovered evidence" that a shareholder's
! agreement existed. By order entered January 16, 2004, Judge Angelos denied this motion. Defendants
Mumma and High-Spec, Inc. timely appealed. Their brief did not raise the shareholder's agreement
but instead argued on other grounds that the circuit court affirmed the January 16, 2004 order per
curium on May 11,2005, and issued a mandate on July 8, 2005.
11, On December 16, 2004, Defendant Mumma, acting pro se at the time, filed his
Motion to Dismiss or Stay in which he contended that this action should be dismissed because...the
shares of stock in High-Spec, Inc. which were distributed from his father's Pennsylvania estate to
his Residuary Trust on January 1, 2002, were subject to a shareholder's agreement, an unsigned
copy of which he attached to his motion. Defendant Mumma II bad previously raised this
shareholder's agreement in the 2000 trial before Judge Bryan and again in his June 6, 2003 Motion to
Dismiss. He asked that this action be stayed pending the outcome of a related Pennsylvania court
action he had filed to determine the enforceability of this shareholder's agreement."
48
225. This restrictive share agreement referred to in the Florida action is the same one
upon which the instant action is based.
226. In the "Amended Final Judgment" Judge Makemson held in relevant part as follows:
Defendant's continued attempts to relitigate the shareholder status of the
Plaintiffs based on allegations of an existing shareholder's agreement are barred by res judicata,
estoppel by judgment, and judicial waiver by failing to raise on appeal this Court's refusal to
consider the alleged shareholder's agreement in the 2000 Final Judgment and the January 6,
2004 Order on Defendant Mumma's Motion to Dismiss or for New Trial. Plaintiffs' Motion for
entry of Amended Final Judgment Following Appellate Review, as amended, is granted. High-
Spec Inc. is hereby dissolved as a result of the shareholders being deadlocked and the illegal
distribution of a major corporate asset to Robert M. Mumma, II."
(Aslo see, Mumma. et. al. v. Estate of Mumma. Docket 2004-6183 (Cumberland County CCP)
and Mumma. et. al. v. Mumma. et. al.. Docket 2006-2197 (Cumberland County CCP), affd at
970 A.2d 1089 (Pa. Super. 2008) allocater denied 602 Pa. 659, 980 A 2d. Ill (2009), holding
that claims regarding a restrictive share agreement in High Spec, Inc. are barred by res judicata
citing the Florida litigation)
49
The undersigned findings of fact are as follows:
226. _ "Mr. Mumma"4 died on April 12, 1986.
227. Mr. Mumma's His Last urn and Test,... enffill and a Codicil to it�t�
(Exhibit A-4) appointed his widow Barbara Me K. Mumm°. ("Mrs. Mumma") and his erLisa
"4. Morgan ET.j°�executrices of his �the "Estate" and also the trustees of the two
trusts established under the Will (the "Marital Trust" and the "Residuary Trust" and, collectively.
the "Trusts Mr. 1:".u...m s Last Will and Testament. (Exhibit A n
") . -. The Petition for Probate and
Grant of Letters was filed on June 5, 1986 and a Decree of Probate and Letters Testamentary were
issued by the Cumberland County Register of Will on June 5, 1986.
228. Attached to the a° Will any Testamen t- was a hand written note in dept's
Mr. Mumma's hand to his widew, Mrs. Mumma, that she should "move slowly and get good
counsel. Then do what you honestly think best."
229. Mrs. Mumma (even though she was 85 years old at the times she testified) testified as to
her late husband's business which included Concrete business, aggregate business, horses, Real
Estate (both commercial and residential) and community work.
230. During Mr. Mumma'her late husband-'s lifetime, Mrs. Mumma she—was not directly
involved in the business but knew about the businesses and each business and property location.
231. After Mr. Mumma'° ='s death in April 1986, Mrs. Mumma spoke to
her and her husband's lawyers, to—George Hadley ("Mr. Hadley") and Karl A4
^'r daman- Pelmeden ("Mr. Pelmeden"), the business accountants, and met and spoke
with appraisers to get a handle on what Mr. Mumma'i° 4- owned.
232. Mrs. Mumma went with her attorney to her husband's safety deposit box located at
the Dauphin Deposit Bank in search of his Last Will and Testament.
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233. Mrs. Mumma was present when the Dauphin Deposit box was opened the bex-by Bank
personnel, but no Last Will and Testament was found in the box.
234. There were other papers and records in the box.
235. At some time following the search for d°^��r°s Mr. Mumma's-_will, an agent of the
Department of Revenue inventoried this- Dauphin Deposit box and noted it contained no items
of value.
236. The Last--Will and Testament Goth""_was discovered in Attorney
William Boswell ("Attorney Boswell")'s '"4tteffley Aeg °""` office files.
237. Mr. Mumma and Mrs. Mumma had a joint safety box at the Fulton Bank.
238. Mr. Hadley prepared an inventory of theis Fulton box's contents. (Ex. T-7)
239. The late- Mr. Mumma had a great amount of personal and business debts and Mrs.
Mumma was determined that these matters had to be immediately addressed.
240. Mrs. Mumma stepped into run businesses to insure employees we were not going to leave and went to
office every day for 8 years.
241. In her new role as manager of the businesses, Mrs. Mumma had to socialize with customers, did calls on
clients and customers, feeeiv�reviewed- contracts and if she had questions she'd call the attorneys, the
accountants, she=
would-=consult with mfr-_Lisa and others and then made decisions.
242. The Late- Mr. Mumma had many horses (between 50 and 100), both Pacers and Trotters.
243. Some horses were owned outright by the Estate and some in partnership with others.
244. The horses were stabled and on a farm in Amity Hall (Perry County) PA.
245. The horse business was not making money, as racing was expensive and included upkeep, boarding,
feeding, hands, trainers, etc.
246. Together with Lisa " d--=the advice of hef-the- attorneys and accountants, Mrs. Mumma and Lisa
the Exeeutr - sold some of the horses by means of private sale and the remaining horses were sold at auction.
51
247. From the beginning, Mrs. Mumma and LisaA'iei�a_ divided their roles in handling estate matters
and then handling trusts matters.
248. At the time of her father's death, Lisa Morgan was an associate attorney working in the Intellectual
Property division of the Philadelphia law offices of Morgan Lewis & Bockius ("MLB").
249. Following her father'sdeath, Lisa Mer-g would travel frequently from Philadelphia but the amount of
work needed to manage the Estate's assets and insure the Mumma companies were operating properly and
productively became more time consuming.
250. In 1987, Lisa Morgan-=moved with her husband, a practicing attorney himself, from the Philadelphia
area—to Harrisburg.
251. Lisa Mergarrthen worked full time on Real Estate matters and was general counsel for all the Mumma
companies and affiliated business handling contract, personnel and labor issues, and Mrs. Mumma worked as
the chief executive officer for all the Mumma businesses.
252. Mrs. Mumma and LisaT'aees=hired a full time property manager and appraisers .
253. Mrs. Mumma and LisaT"�,. hired- attorneys and relied on their expertise in filing
corporate and estate or trust related documents as required by federal, state and local laws including tax matters,
permits, fictitious name filings, corporate documents, agreements and the like.
254. After consulting with their attorneys, accountants and advisers Mrs. Mumma and Lisa the a=-sold
non-performing property and retained the money makers.
255. Mrs. Mumma and LisaTn ses_ discussed any matters relative to the estate and the trusts
among themselves and if they needed more information or an opinion they would consult experts and act as they felt
in best interest of the family.
256. Mr. e W. Hadley is a certified public accountant("CPA")from Buffalo,New York.
52
256. Mr. Hadley has been a CPA since 1969 and has since his graduation from the University of
Buffalo in 1965 worked as an accountant.
257. Mr. Hadley began working for the Buffalo, NY accounting firm of Lucker, Kennedy &
Felmeden r°' ,man -in 1965 and in 1986 became a partner.
259. Mr. Hadley is a licensed CPA in the State of New York and a member of the American
Society of Certified Public Accountants and the New York Society of Certified Public Accountants.
260. Mr. Hadley has since the 1960s worked with the Mumma family, first with Mr.
Mumma the decedent during his lifetime and then with Mrs. Mumma and Lisa the Exeeutof
RRbe t rR r,r...,.ma from 1986 until the present.
261. -Mr. Hadley also worked with Objector Robert M. ^III and 8bjectter Barbara
Mumma at various times from the 1960s through the 1990s.
262. Mr. Hadley had detailed, specific knowledge of the Mumma family businesses,
including the many facets of the corporate structures used by the Mumma family.
263. Mr. Hadley had worked with Mr. Mumma the decede - during his lifetime on a
variety of accounting had worked closely with Mr. Mumma'sthe deeedem's attorneys,
specifically Attorney W4 Boswell of Harrisburg, PA and several attorneys from MLBtthe
la film n,r,..gan Lewis p. Beek .. of Philadelphia, PA.
264. From 1969 until Mr. T'°°n�TMumma's-death in 1986, Mr. Hadley worked on all
of Mr. Mumma's the decedent's personal tax matters and Mr. Karl Feldarruffi-Felmeden was Mr.
Mumma's 4°° Vs personal financial advisor.
265. Mr. Felmeden +:e'er--died in November 1986 and had been ill for over a year prior
to his passing.
266. In the later part of 1985 until Mr. Mumma's Deeedenf-,d eath in June 1986, Mr.
Hadley became Mr. Mumma's n°° T-financial advisor as well as his accountant.
53
267. In 1990 the firm of r..., ,ckhariLucker--Kennedy & Felmeden Feldfafflan om- divided and Mr.
Hadley formed his own accounting firm.
268. Mr. Hadley was requested by Mrs. Mumma and Lisa the Estate and T°u°*°_to continue his
representation of the Estate and the Trusts and Mr. Hadley retained all the Mumma
records, both personal, corporate and business related, which had formerly been retained
by Le�Lucker-, Kennedy & Felmeden o°°'z c ama=_.
269. Mr. Hadley and his firm had unfettered access to all the financial and personal records of
Mr. Mumma t'� e dereden rincluding legal, corporate, real estate and financial with the
exception of a personal Chase account.
270. Mr. Hadley had helped create and maintain corporate computer based records for the
larger corporations under the deeedent's-Mr. Mumma's—Corporate Family structure including
general ledgers, depreciation schedules and check books.
271. Mr.Hadley helped create and maintain manually (hand) created records for the smaller
corporations and entities under Mr. Mumma's *ms s--family corporate structure.
272. Annually since at least 1965 Mr. Hadley and his firm prepared year end statements for
Mr. Mumma's decedent's -many corporations which included a detailed flow chart
showing the inter-linked structure and ownership interests of the related business.
273. Each year from at least 1965 until Mr. Mumma's deeedent's -death in 1986 Mr. Hadley
and his firm prepared these documents and presented the same to Mr. Mummathe
Dgin_-for his review and comment prior to making the annual statements final.
274. Mr. Hadley and his firm also provided annual personal statements of assets and
ownership interests to Mr. Mumma Deeeden t_
54
275. During his life time and throughout his business career, Mr. Mumma Deeedent -had
numerous corporation and other business entities come into existence and also go out of
existence and the annual statements and flow charts supplied by Mr. Hadley, Mr.
FelmedenFeldenmen and their firm were created to assist Mr Mumma�eeede nt- and maintain a
historical records of any changes
276. Mr. Hadley and his firm also prepared year end statements for Objector Robert M-.
Mumm -II from 1980 through 1988 and presented the same annually to Robert M
Mu3um - II for his review and comment prior to finalizing each year end annual
statement.
277. Mr. Hadley and his firm also prepared similar annual statements for all of the
Decedent's other children: Lisa, Linda and Barbara.
278. Mr. Hadley has never been an officer, shareholder or director of any of the Mumma
Family corporations including those owned in whole or part of any Mumma family member
and his services and those of his firm were billed on an hourly basis for work performed.
279. During the administration of the Estate of°ahem r r Miii.,.,,.,_ and the Trusts created
the-euz.der_, Mr. Hadley and his firm have given all parties to this matter and all Beneficiaries
of the Estate and Trusts access to all records he maintains, with the exception to proprietary
work papers and records required by regulations relating to Certified Public Accountants.
280. These records exceed 100,000 pages of documents.
281. All records Mr. Hadley maintained were made available for inspection by the
Objectors and/or their respective counsel.
282. Mr. Hadley personally prepared and supervised the tax returns for all the Mumma
family corporations together with the personal tax returns for the Mumma family members,
including Mr. Mumma and the Decedent and 01je,ter_ Robert M. " :a=a= II for at least
fifteen (15) years prior to Mr. Mumma's deeedears death.
55
283. Mr. Hadley prepared and supervised the audited financial statements for year end 1985
together with a June 30, 1986 statement for Pennsylvania Supply Company, Kim Company,
Nine Ninety Nine, Inc., Pennsy Supply, Inc. and the subsidiaries of Pennsy Supply, Inc.
284. Mr. Hadley was found to be a very credible witness.
285. At the time of Mr. Mumma's a°e is=death in June 1986, Mr. Hadley had first
hand, detailed and specific knowledge of the assets owned by Mr. dee°�rMumma- and their
relative values.
286. At the time of Mr. Decedent's Mumma's- death, Mr. Hadley identified a number of
problems or potential problems facing the Estate.
287. These problems were: the great debt which had been amassed by Mr. Mummathe
;ceden - which included 100-200 separate debts to various banks; the lack of profitability of
the Mumma companies; the purchase of race horses and the care and upkeep of the horses; new
purchases of equipment on credit and valuation of assets.
288. Following the passing of Mr. Mummathe-decedent, Mr. Hadley met and discussed
the many debt issues and cash flow problems with Mrs. Barbara "ter_-Mumma and 9b}ectar
Robert T4. "
�— a_ II.
289. Mr. Hadley also contacted the many creditors and banks to assure them a
comprehensive plan was being developed to address the debt issues.
290. In July 1986 Attorney Arthur Klein ("Attorney Klein") of MLB drafted a redemption
and consent agreement relating to 85 shares of Pennsylvania Supply Company. (Ex. T-37 and
T-38)
291. The redemption of these 85 shares was being made in favor of the EstateBarbara
WK. Mumma, stirviving speuse pursuant to Section 303 of the Internal Revenue Code.
292. Mr. Hadley performed the calculations necessary to support the valuation stated in
the redemption agreement.
56
293. All four children including Robert 11 Bob Mumma Bibs-Barbara- Mumn3a_, Lisa Mer-g
and Linda Rah (new""•°m�- signed the unanimous consent to the agreement. (Ex. T-109)
294. Robert Mtea;= II, as Vice President of Pennsylvania Supply Company executed the
redemption agreement. ( Ex. T-1 15).
295. Thereafter the 85 shares of Pennsylvania Supply Company were redeemed.
296. In 1986 following receipt of Letters of Testamentary from the Cumberland County Register
of Wills, Mrs. Mumma and Lisa the am eeutriees_, after consultation with their legal advisors and
discussions with others, hired Mr. Hadley and his firm as the accountant for the Estate of Roben M.
Mtxmm -.
297. Prior to accepting and agreeing to this representation, Mr. Hadley and his firm had
experience representing wealthy persons in the construction and real estate field and other family owned ,
closely held businesses and also representing their respective estates.
298. The rte-Estate was the most complex of any estate Mr. Hadley and his firm had ever
handled not based on the value of assets but based on the complex nature of the interconnected corporate
structures.
299. Mr. Hadley had several meetings with family members, Mrs. Mumma, Lisath-mss_,
the Estate's attorneys, the officers, employees, customers, and creditors of the various corporations owned
in whole or in part by Mr. Mummath m- and advised all interested parties that the Mumma
businesses would continue as usual.
300. Mr. Hadley and his firm also continued to be the accountants for all the Mumma companies.
301. Mr. Hadley and his firm worked on valuing the Estate's assets and initially worked closely
with Attorneys ey--Art ui= Klein of the !a- firm Mergan Lewis is & Bald •: ("M B"`_ and later with
many other attorneys at MLB the---fr+in.
57
302. At the time of his death in June 1986 Mr. Mumma Decedent- owned the following:
a. 5,000 shares equaling50 percent of the outstanding shares in Lebanon Rock, Inc.
b. 700 shares equaling98.32 percent of the outstanding shares in Pennsylvania Supply
Company.
303. At the time of Mr. Mumma's _death Pennsylvania Supply Company
owned 7,241 shares equaling 83.42 % of the outstanding shares in Kim Company, together
with various property and equipment valued at $2,101,100.00, including 100,000 shares
equaling 14.28 percent of Middle Park, Inc., a Colorado Corporation.
304. At the time of Mr. deeedcni'TMumma's-death Pennsylvania Supply Company
owned 100,000 shares representing 14.28 percent of the issued and outstanding shares in
Middle Park, Inc., a Colorado Corporation.
305. At the time of Mr. neeedent'TMumma's-death Middle Park, Inc., a Colorado
Corporation, owned 10 shares equaling 100 percent of the outstanding shares of Bobali
Corporation which owned various property and equipment valued at $928,805.
306. At the time of Mr. Deeedent's Mumma's-death Kim Company owned 1,100 10%
convertible preferred shares and 867 common shares of Nine Ninety Nine, Inc. (the preferred
shares equaling 100 percent of the outstandingl0% convertible preferred shares of said Nine
Ninety-Nine, Inc. eerpofatioxs–=and the common shares equaling 40.97 percent of the
outstanding shares of Nine Ninety-Nine, Inc. ,aid en_), together with various property
and equipment valued at $2,108,859.00 and a one half (fifty (50) percent) interest in Union
Quarries, Inc., d/b/a Union Quarries Bononeybrook Quarries located in South Middleton
Township Cumberland County, PA.
307. At the time of Mr. Deeeden14 Mumma's-death Nine Ninety Nine, Inc owned 2,500
shares equaling 100% of the outstanding shares in Pennsy Supply, Inc.
58
308 At the time of Mr. D°�� Mumma's- death Pennsy Supply, Inc. owned 5,000 shares
equaling 100 percent of Elco Concrete Products, Inc.; 500 shares equally 100 percent of the
outstanding shares of Kim & Kin, Inc.; and 1000 shares equaling 100 percent of the outstanding shares
of Robert M. Mumma, Inc.
309. In addition to Mr. neeedentMumma-, at the time of Mr. Deem ent'sMumma's- death the
Decedent's son- Robert M. Mumna— II owned 5,000 shares or 50 percent of the outstanding stock of
Lebanon Rock, Inc.
310. In addition to Pennsylvania Supply Company, at the time of Mr. r'°° TMumma's- death
the Decedent's children: Robert #L_ II, Barbara, Linda, and Lisa each owned 1500 shares equaling
21.43 percent each of the outstanding shares of Middle Park, Inc.
311. In addition to Pennsylvania Supply Company, at the time of Mr. Mumma's Deem dent''s - death
the D a '-''a ._ Barbara, Linda, and Lisa each owned 333 shares or 3.84 percent of the
outstanding shares of Kim Company, and Robert II owned 334 shares.
312. In addition to Pennsylvania Supply Company and Deeede-•*'° chit ren_,-at the time of Mr.
Mumma's D° s-death the- Mrs MummaDeeedent's wife, Barbara- owned 106 shares or 1.22
percent of the outstanding shares of Kim Company.
313. In addition to Kim Company, at the time of Mr. Mumma's Deee ent's - death the
Deeed°~"° ehildrew_Barbara and Lisa each owned 103 shares of 8% preferred stock and 312 shares of
common stock , Linda owned 61 shares of Me preferred stock and 312 shares of common stock and
Robert II owned 314 shares of common stock of Nine Ninety Nine, Inc.
314. Subsequent to being named as accountants for the Estate ol'Rabe°` M. n,r,•.,.ma- and
prior to year end 1986, Mr. Hadley, the attorneys at MLB, the family members and Mrs. Mumma and
Lisa44w-_&EeeutYieer - discussed in detail the viability of liquidating some of the Mumma companies,
59
specifically Kim Company and Pennsylvania Supply Company pursuant to the Internal Revenue Code's
General Utilities Doctrine which was scheduled to expire on December 31, 1986
315. The General Utilities Doctrine was a federal statutorily created mechanism through which certain
entities could step-up their basis in certain assets, thus possibly creating a beneficial tax consequence.
316. After consultation and recommendations from both Mr. Hadley's firm and the attorneys from
MLB, it was agreed by all parties including Mrs. Mumma and Lisa. Robert 11. Barbara and Linda the
pupf-Ifrice"'; ° a a4 the i,enefi,.iari,s_ that Kim Company and Pennsylvania Supply Company should be
liquidated at the same time, by first merging Kim Company into Pennsylvania Supply 9hen-into-N4*e
n
Ninety Nine, te_
317. Mr. Hadley had at a minimum weekly telephone or face to face meetings with either e?keetItf ees-,
Mrs. Mumma or Lisa Mrs.-Morgan_or both of them, throughout the administration of the Estate and the
Trusts efeated-hefet+ z-.
318. For all real estate owned by Mr. Mumma or his business entities, Mrs. Mumma and Lisathe
.wee riees_with the help of Mr.Hadley hired real estate appraisers.
319. For the Pennsylvania properties, Mrs. Mumma and Lisa the state_ engaged the
Helseln Firm to appraise properties in Cumberland, Dauphin and Perry Counties who compiled
three (3) books of appraisals by county. (Exhibits T-8, T-9, T-10)
320.Mrs. Mumma and LisaTlieE- �" did not appraise the Bender property which was located in Adams
County, as it had been purchased within four (4) months of the deeedem's- Mr. Mumma's passing and
the purchase price of$277,184.50 was utilized.
60
321. The property in Stuarttewvart Florida was appraised by a Florida appraisal Company (Exhibit T-11).
322. Mr. Hadley valued High Spec, Inc. at $5,000.00 based on its huge debt.
323. The value of the many horses owned by Mr. Mummafli were obtained by the exeeutri
Mrs. Mumma; from horse brokers.
324. Mr. Hadley and his firm prepared the values of the various corporations in which Mr. Mumma
deeedent had an interest which included: Derry Airearier, Inc., Pennsy Supply, Inc. , Nine Ninety Nine,
Inc., Pennsylvania Supply Company and Kim Company. (Exhibits T-12, T-13, T-14, T-15, T-16).
325. Mr. Hadley used the investment made by Mr. Mumma4ie-decede*t in Lebanon Rock, Inc. which had
been formed within six months of his passing and was owned fifty percent by Mr. Mumma*",.e deeedenR
and fifty percent by his .;ode,, rRobert W" a II. (Exhibit T-167)
326. Mr.Hadley explained the methodology he and his firm utilized in the valuation of each of these
companies which included historical reviews (5 years) of earning power, dividends analysis, book value,
together with individually owned assets of the individual companies.
327. In early 1987 Mr. Hadley advised Mrs. Mumma and Lisa the Exeeut ices that for ease of accounting,
the two Colorado companyies, Middle Park, Inc., and its Pennsylvania subsidiary, Bobali Corporation—
should be merged.
328. Resolutions recommending this merger were prepared and signed by all directors of the companies
including Robert "". Mumma, II and a meeting scheduled for March 23, 1987 for approval. (Exhibits T-
189 and T-190).
329. The directors of Middle pPark elected Mrs. Bafbara-: ,- Mumma as President (Exhibit T-
177).
61
330. On March 12, 1987 the proposed Plan and Agreement of Merger and Notices of the
scheduled meeting to vote on the proposal were sent to all shareholders. (Exhibit T-
171).
331. Shareholder Robert M. Mumm II wrote on his copy "out of town" and returned it to
the corporation. (Exhibit T-191).
332. Shareholder Linda Roth Mumma executed a proxy in favor of Lisa Mer-gan=. (Exhibit
T-178).
333. The scheduled and noticed meeting was held and a majority of the shareholders voted
in favor of the merger and Mrs.Bafbar WK.- Mumma executed the Plan Agreement of
Merger as president of both companies. (Exhibit T-179).
334. On March 27, 1987 notification of the merger was filed with the Colorado Secretary
of State. (Exhibit T-1 80).
335. Mr. Hadley and his firm had had prior experience in performing valuations of family
owned real estate companies, building material companies, quarries, sand and gravel
operations and other similar closely held business organizations.
336. Mr. Hadley had formerly testified in New York State as an expert in quarry operation
values.
337. In addition to his professional experience, his and his firm's personal and historical
knowledge of the Mumma family businesses, together with the advice of the tax
department of MLB, Mr. Hadley relied heavily on Revenue Ruling 59-60 and the
methodology set forth in that Revenue Ruling to calculate the fair market value of the
decedent's business interests. (Exhibit T-1 43).
62
338. Mr. Hadley, following his and his firm's review of the valuations and at the direction
of Mrs. Mumma and Lisallie Exeoutrices, compiled a final document listing all of the decedent's business
assets for review by the tax department of MLB. (Exhibit T-17)
339. Mr. Hadley and his firm together with advise from the tax department of MLB prepared
the Estate's Pennsylvania Inheritance Tax Return and the Federal Estate Tax Return.
340. Following review of the documents prepared by their attorneys and accountant, on
July 13, 1987, Mrs. Mumma and Lisa thezxeeat�=ac filed the Federal Estate Tax return.
341. Following review of the documents prepared by their attorneys and accountant Mrs. Mumma and
Lis°h _ filed the Pennsylvania Inheritance Tax Return.
342. Following receipt of the Federal Estate Tax Return, the Internal Revenue Service advised the Estate
and its attorneys and accountants that an audit of the return would be conducted.
343. Following the audit the Internal Revenue Service contacted the Estate through its tax attorney, Arthur
Klein, Esquire and stated the IRS was adjusting the values of the Estate's assets upward. (See Exhibit A-
3)
344. Following the review of the findings of the Internal Revenue Service's audit and after consultation
with the Estate's attorneys and accountants, Mrs. Mumma and Lisathe Co-executrices accepted the
findings as settled by the Internal Revenue Service.
345. After further consultation with their attorneys and accountant''°end Mrs. —Mumma-and
Lisa, the a,.eedeiiVs -..ido , exercised the option to defer the payment of Estate tax due until Ms.
Mumma's he -death.
346. Following receipt of the closing letter from the Internal Revenue Service, the Pennsylvania
Inheritance tax was finalized. (Exhibit T-227).
63
347. Mr. Hadley was asked by Mrs. Mumma and Lisa*' �s to review the various
assets and make recommendations for placing 5, an amount equal to fifty percent (50%)
of Mr. Mumma's total the-gross estate as finally determined for federal Estate Tax pun)oses
into the Mrnarital Ttrust and the reaminder into 500% of the gross estate int„ the residual
establishedunder thp, will ("Marital Trust" and "Residual Trustn).
348. Mr. Hadley spent many hours reviewing the possibilities as to which assets to place into
the twe%Trusts with attorneys from MLB and the exeeut;«Mrs. Mumma.
349. Mr. Hadley consulted the former real estate appraisers for appropriate adjustments of
their 1986 land appraisals and was advised that the 1986 figures were appropriate in 1987
(Exhibit T-144).
350. Mr. Hadley made adjustments to the values of the interest in the various corporations using
similar methodology he and his firm had used in preparing the 1986 date of death values, together
with the review of other reports, including a 1987 Touche Ross report regarding Pennsy Supply,
Inc. and consultations with the attorneys at MLB. (Exhibits T- 145, T-59, T-58, T-173, T-159, T-22,
T-28).
351. Mr. Hadley reviewed all the assets and recommended which assets should be placed in either of
the 1,,_..,_:tal of the resid ..,1 .rusts.
352. Mr. Hadley factored many aspects of each asset including the assets income producing
capabilities, the book-keeping requirements and other factors.
353. Mr. Hadley met and discussed differing mixes of assets with Mrs. Mumma and Lisa the
e�ieetitriee and their attorneys and after several months the assets were divided to achieve the
required funding level of the Martial Trust with the remainder to be allocated to the residual
11rust
apprexinifftely $8,200,000.00 in assets,
64
354. Mrs. Mumma was entitled to the income from the trusts as well as a five (5) percent
withdraw power from the Mrrrarital Ttrust. (See bast Will and Testa,. ent of Robert*4 M •niffia
and Exhibit T-1-8)
355. Pending the filing and final determination of the federal estate return, Mrs. Mumma had not
so exercised this withdraw power; however, in 1987 she was entitled to a—withdraw €
$416,155.00 and by the end of the year the amount would exceed $700,000.
356. At this point in time there was not sufficient cash in the Eestate or in the tTrusts which were
being funded to make such a payment and therefore Mrs. Mumma sought the advice of Mr.
A#kttr Klein, a senior paftnef with r n, ° regarding the five (5) percent withdraw power.
357. Mn. Attorney Klein advised Mrs. Mumma that in lieu of a cash payment, a payment in kind
of stock or property was appropriate. (Exhibit T-20)
358. By November 18, 1987, Mrs. Mumma and Lisathe executors, after advice and review by
their accountants and attorneys, had separated the assets of the Estate and placed an amount
equal to fifty percent of Mr. Mumma's total gross estate as finally determined for Federal
Estate Tax purposes in the Mn}arital Q rust and fill), percent in the residuary trust.
359. On November 18, 1987, after the Martial Trust was funded assets were divided into the two
thp. F4,00.14r"^ Mrs. Mumma and Lisa decided that Mrs. Mumma's five percent withdraw
power would be taken on an in kind basis. (Exhibit T-19)
360. On December 18, 1987, Mrs. Mumma received her percentage share interest in capital
stock, rather than a cash payment. (Exhibit T-21).
361. After the funding of the two Trusts Mr. Hadley and his firm performed all the accounting
needs and paperwork necessary for the financial side of the Jrusts and all the related entities in
which the trusts had controlling interest including: G-A-T Distribution Corn.€T, Bobali
Corporation, D.E-. Distribution Corp. and—MRA I and MRA 11.
65
362. These services included: record keeping, preparation of tax returns, accountings, rendering
financial and accounting advice to Mrs. Mumma and Lisa the eheetarices and
recommendations and meetings with various attorneys and attending various court hearings and
depositions.
363. Beginning in the 1990s, Mr. Hadley and his firm also took over check writing duties, but did
not have signatory powers as such control remained with Mrs. Mumma and Lisa: s
and trastees.
364. Mr. Hadley and his firm reviewed stock books and minutes of the various businesses and
related companies to determine ownership of stock.
365. Mr. Hadley in conjunction with various attorneys assisted in calculating the values of various
stock owned by the Estate, determined the percent of stock which would equate to the five (5)
percent in kind in lieu of cash payments to Mrs. Mumma, the widow of the deeedent, prepared
documentation for Lisa's executrixes commissions and trustee commissions.
366. Following such determinations the figures were presented to Mrs. Mumma and Lisathe
executrixes and t ustees.
367. Mrs. Mumma declined all commissions and fees.
368. The d ee 's Last Will aft&-es . provided that Mrs. Mumma would receive any
income generated from the trusts and a five (5) percent "scoop out" provision with regard
to the Marital Trust.
369. Mrs. Mumma did receive during her lifetime in excess of $1.6 million as distributions of
income from the trusts.
370. Lisa^,r_:n Morgan, received executrixee's commissions and trustee fees; however, Mrs. McK.
Mumma insisted that these commissions and fees were taken from the income generated by the
trusts.
66
371. During the administration of the Eestate and the Ttrusts such executrixee/trustee fees were
taken from the income prortion of the tTrusts.
372. LisaMus. fin is extremely active in her role as trustee working 20-40 hours per week
and receives no salary from any of the corporations or entities which she manages; she does
receive commissions as trustee.
373. Following discussions with Mr. Hadley and her advisors as to which in kind property was
proper for a distribution in lieu of cash, to Mrs. Mumma",er-mothei, Lisa Morgan as Rxeeut
determined and selected real estate being leased by Fulton Bank together with a proportional
shares of interest in various entities owned by the Trustsestate.
374. After receiving her first in kind distribution in lieu of cash, thereafter on an annual basis,
Mrs. Mumma annually, up until the time of her death exercised her right of taking five (5)
percent of the value of the Marital tTrust in kind in lie.t of cash.
375. Mrs. Mumma and all bills from the accountants and attorneys
and many times requested deduction in fees or questioned time allotted to issues and matters.
376. In 2000, Mrs. Mumma had established her own trust naming herself and her daughter, Lisa
Mergan as the trustees.
377. Upon the passing of Mrs. Mumma, Mr. Hadley became a trustee of this trust.
378. At the time of her death, Mrs. Mumma had not taken all income she may have been entitled
to take from the Trusts during her lifetime.
379. Mr. Hadley based on a legal opinion given by Attorney Joseph O'Connor ("Attorney
O'Connor") of MLB, had calculated a date of death value of the undistributed income due Mrs.
Mumma at the time of her passing, which totaled in excess of two million dollars.
67
380. David C. Cleaver ("Attorney Cleaver")_is an attorney at law currently practicing law in
Chambersburg, Pennsylvania.
381. Attorney Cleaver graduated from the Dickinson School of Law in 1967, has been a
professor at the Dickinson School of law instructing students in the area of Estate Planning
for more than thirty years.
382. Attorney Cleaver's practice is a statewide practice involving estate planning,
interpretation of wills and trusts and the taxes affecting the same.
383. Attorney Cleaver was hired as an expert to review the reports of Abjeetof-Robert-M—
Mamma II's experts, specifically the reports of Attorney May and Attorney Jonathon Crist
"Attome Crist" and the objections of Robert M-lulu 11,
384. In addition to the reports and objections, Attorney Cleaver reviewed the last-Will and
the Petition for the grant of etters testamentary, the
inventory and appraisement, the appraisals of the Real Estate, the valuations made by Mr.
Hadley, the valuations for the estate and inheritance taxes, the Internal Revenue Service
closing letter, the accounts filed by the estate, the exceptions [objections], the prehearing
depositions, the testimony given at the current hearings.
385. Attorney Cleaver was asked to provide an opinions and prepared reports relating to the
wording of Paragraph 7 of the deee e:,t's Will, the meaning and implementation of the
wording of decedent's the wWill which gave Mrs. Muwnmabis- i the right to withdraw
from the corpus of the mMarital fl'rust $5,000.00 or five (5) percent of the mMarital tTrust,
the tax consequences associated with the decisions of the-Mrs. Mumma and Lisaexeeutriees
and the trustee and the allocation of assets between the Mmarital t"Trust and the Rresi.duary
t'frust.
68
386. Attorney Cleaver discussed that Mrs. Mumma and Lisathe executrices had opted to take a
"Q Tip" election on both Ttrusts. This election relates to the federal estate tax and allows a
surviving spouse to defer estate taxes which will then be payable at the death of the surviving
spouse.
387. Mrs. Mumma, fli 4eeedent- • + , had elected to defer the payment of estate taxes until
the time of her death.
388. Attorney Cleaver also discussed the status of estate law and practice in 1982 at the time the
decedent*s Last °•-te a gtan„Pnt was written and the language used at that time and the
common understanding in estate practice with the use of the terms so used.
389. Attorney Cleaver opined that the allocation of assets made by Mrs. Mumma and Lisathe
P p.,; between the Marital and rest uaf trusts was proper under the terms of the
dN-RdR4IVS V Will.
390. Attorney Cleaver opined that Mrs. Mumma was entitled to five percent (5%) per annum of
the value of the Marital trust and that it could be taken as either cash or in kind in lieu of cash.
391. Attorney TsnathR;; Christ was called as an expert by Ob.teetar Robert I1M Mumma.
392. Attorney Christ is a practicing attorney from Hershey, Pennsylvania with over twenty
years of estate practice and in addition to his juris doctorate, Attorney Christ holds a Masters
of Law in taxation.
393. He opined that Attorney Cleaver's opinion relative to the distribution of estate assets and
that Mrs. Mumma and Lisa'sthe gxeeutriees interpretation of the seventh paragraph of
thed°pA-Will was proper.
394. Objeetor Barbara-M-.-Mumma-presented the expert testimony of Attorney Daniel Johnson
("Attorney Johnson"), an attorney from Allegheny County, Pennsylvania.
69
395. Attorney Johnson graduated, cum laude, with a juris doctorate from the University of
Pittsburgh in 1987.
396. He has twenty years' experience in the field of estate practice and taxation. And is a
partner with the firm Williams & Coulson.
397. His firm represents Obje4e-Barbara °A. Mumma for her estate planning matters.
398. He opined that the distribution of assets between the two trusts was improper and in
difference to the specific language of the Seventh Article of oeradent's 4 a,# the Will-and
Testament.
399. He also opined that the value of the Mmarital ITrust had been over valued by at a minimum
of $861,000.00 because no reduction was made for the value of specific legacies made to
Mrs. Bafbara P UK. Mumma in other Articles of the Last-Will and Testament. As a result the
Residuary fund was undervalued.
400. He also opined that because of the over valuation, Mrs. Mumma received a larger share to
which she was entitled each time she took her five percent(5%) withdraw right.
401. 9k3iecto Barbara "4. Mumma also offered expert testimony from Joseph D.C. Wilson, II
("Mr. Wilson").
402. Mr. Wilsonian+s is a Certified Public Accountant having been licensed since 1973.
403. Mr. Wilsonliams began his career with Touche Ross and later Arthur Young and has since
1988 had his own practice in Pittsburgh.
404. Mr. Wilson's field of expertise include accounting, probate, Estate and Trust funding and
accounting.
405. Mr. Wilson spoke with Barbara^"��°. ^ .a+a and Bob Williams of the Williams Coulson
law firm and reviewed some of the Mumma company records and appraisals. Mr. Wilson
70
stated he believed the Mmarital tTrust assets were undervalued at the time of funding between 20-25
million dollars.
406. —As a result, he opined the annual five (5) percent in kind distribution to Mrs.Bafbara NUN.
Mumma likewise improperly determined and which amounted to an excess of over two million
dollars in assets to Mrs.Pancara-eK Mumma.
407. Mr. Wilson also stated he believed that almost all the decisions made by the–
Mrs. Mumma and LisaE*eeutfieea caused a higher tax burden to the estate, including CRH
>LR "CRH" 's squeeze out of Bob Mumma and the Estate's 1986 use of the General Utilities
Doctrine to step up the basis of the quarrying operations.
408. In late 1986, Thomas Hill ("Mr. Hill"), then the Vice President of Acquisitions of Old
Castle Materials, Inc., a wholly owned subsidiary of CHRH was contacted through a mutual
friend by r%Robert Ili^. ^tea relative to the Mumma family quarrying businesses.
409. Mr. Hill and Clint Berocktolde-hteldeektold had been office mates from 1980-1985.
410. Mr. Clint–Berocktoldekteldeekteld and Robert I14ab had been acquaintances for many
years.
411. In 1986 Mr. Hill was traveling throughout the United States and acquiring operating
quarries for his company and its parent company C14RI4.
412. At the time he was contacted in late 1986, Mr. Hill knew nothing about the Mumma family
or any of the Mumma businesses.
413. Mr. Hill met with Robert [IB-ob in Robert II''sBoh=s office to get to know him because
Robert 1114obunderstood that Mr. Hill and his company were actively seeking acquisitions.
414. Although they talked about the Mumma quarry operations, Robert I114eb never mentioned
to Mr. Hill that his mother and sister were the£executors of the his father's eEstate.
71
415. Following his meeting with Mr. Hill, Objecter Robert lIMumf a approached the Mrs.
Mumma and Lisalistateand proposed to the estate that he be permitted to purchase the
quarrying operations.
416. On November 22, 1986 the Mrs. Mumma and LisaExeeutrie, Bafb..„., NUK. Muffirn
sent Robert 11 a letter asking him to make an offer to the Estate to
purchase the quarrying business. (Exhibit 02-11).
417. The Mrs. Mumma and Lisa; e6--then advised Mr. Hadley to provide Robert
11 . . and his advisors with records he might need. (Exhibit T-27).
418. In March 1987 a meeting was held between Mrs. Mumma and Lisath is s and
Objeeter BRobert 1I Mu ,=na regarding giving Robert I1Beb the opportunity to buy the
quarrying operations.
419. Robert 110t4eetef "^ *� uffla believed the operation to be worth between five (5)
and seven (7) million dollars—; however, after no agreement could be reached, Mrs.
Mumma and Lisathe,,eexeet s notified Roebert 1I4c4 that the Estate would not be selling
him the quarrying operations.
420. Several months later in 1988, Mr. Hill was contacted by a business broker who stated
the Mumma family business relating to their quarrying operations may be for sale.
421. Mr. Hill then began speaking with Jack Hayes from C#RR, Mrs. Mumma and Bud
Lake, the Mumma quarrying operations' Chief Operating Officer and after signing
confidentiality agreements met with Hayes and Mrs. Mumma in Harrisburg.
422. Mrs. Mumma was very up front about the disputes in the family and the complex
nature of the Mumma operations.
423. Mr. Hill had been involved in making approximately 300 acquisition offers to purchase
small and medium sized operations and companies and had closed on approximately 200
of those offers.
72
424. In late 1988, Mr. Hill made an offer to Mrs. Mumma and Lisat'ne &Eeeutef, for the
Mumma quarrying business in the amount of 43 million dollars; however, there were many
contingencies and C14RH had to perform due diligence before any closing could occur.
425. In November 1988 Bob Mumma opposed the sale and wrote a letter to Mrs. Mummahis
mothe claiming he had the right of first refusal. (Exhibit T-121)
426. Following letters to Mrs. Mumma and Lisa'he- :Necuter, and personal calls to Robert
lffl,ab regarding Robert IIBeb's position that he hads the first right to buy certain Mumma
businesses, Mr. Hill revoked his company's offer and advised the Estate to contact him once
all litigation was finalized.
427. In 1993, after a final determination that Robert I113eb did not have the right of first refusal
to buy the quarrying operations [See facts in Equity 66 and Judge Sheeley's findings above],
Mr. Hill, then the CEO of Old Castle Materials, Inc., negotiated and closed on the acquisition
of the Mumma quarrying operations for approximately 35 million dollars.
428. Obj�Robert II Mumma had a minority interest in the eampany- or companies
purchased by Old Castle Materials, Inc. from the Estate and the Trusts.
429. Mr. Hill, Mr. Hayes and their companies, after consultation with their attorneys made the
determination to "squeeze out" Robert IlBeb's minority positio nisstte.
430. The "squeeze out" option, a legal mechanism which permits a corporation's majority
shareholders to sell the corporation over the objections of a minority shareholder, was
exercised, implemented and insisted by Mr. Hill, his company and C14RH.
431. C11RH is a public company and has legal teams which do their due diligence including
legal review of ownership interests, ownership of land and rights of all parties associated with
the transaction.
73
432. Following the closing of the purchase from the Estate and the tTrusts created
thereunder, which included the Estate's one half interest in Lebanon Rock, Inc. Mr. Hill
then met with R€3obert 11 44 m,4 and purchased RBobert 11's one half interest in
Lebanon Rock. Inc. and also leased some additional ground from the Trustees.
433. Mr. Hill left C14RH sometime in 2008.
434. During his tenure with C14RI_1 Mr. Hill completed approximately six billion dollars of
acquisitions and law firms hired and used for the acquisitions insured that all was done
properly prior to any closing.
435. Mr. Hill acknowledged that the Mumma deal generated more litigation than any other
acquisition in the history of his former company, but that his company was successful in
all the litigation with Robert TIP-ob.
436. Following the sale of the quarrying operations Mrs. Mumma and Lisa the aistevs
continued to manage the €Trusts' assets.
437. If problems arose Mrs. Mumma and Lisathe-tfustoc; consulted with their attorneys,
accountants and managers prior to making decisions.
438. As Mrs. Mumma grew older, she relied more on Lisa Met-,u3 who handled the day to
day operations, but Mrs. Mumma remained active in her duties as trustee.
439. In 1989 Mrs. Mumma nd Lisathp. F,.aeutfie ,,, R d T�s brought an action in
Florida against 9b}eetorRobert 11 Mumm for allegedly transferring or attempting to
transfer an Estate asset, a piece of real estate, to himself.
440. Rhobert 11 Mumma constructed a private residence on the transferred property.
441. Mrs. Mumma and Lisa44ie Executrices hired counsel in Florida to prosecute their
claim.
74 P.
442. Following years of litigations [details set forth above in findings relating to the
Florida action], RBobert 11 was found liable to the Estate and the legal owner of the
property, High Spec, Inc. in an amount equal to the value of the real property he had
misappropriated, together with the Estate's legal fees which totaled more than the value
of the property.
443. Beginning a few months following the death of his father, tbjeetr>r-Robert N4:
Mtmmia II has filed more than twenty (20) separate actions against the Estate. the
Trusts. Mrs. Mumma and Lisa of his t;;'ther--t e eeutriees/trtast zr;s fflo+"eF an
sister, his other siblings and CHRIL
444. After being named in these various actions in Dauphin County, Adams
County, Lebanon County, Perry County, Cumberland County, the Commonwealth
Court, the United States District Court for the Middle District of Pennsylvania, and
other courts in Pennsylvania and Florida, theme eF_,state. the Trusts, Mrs.
Mumma and ,Lisa and his have answered the claims, including this
audit and expended attorneys' fees in excess of five million dollars.
444. Mrs.9aFbaru-N4e-.Mumma passed away on July 17,20 10.
445. Subsequent to her mother's passing, Lisa Morgan, as surviving trustee, together with
Mr. Hadley, the eEstate's and tTrusts' attorneys, managers and advisors, reviewed
matters involving the eEstate and the Trusts and attempted to keep her brother and
sisters informed.
446. From the outset of accepting the appointment as an executrixee and trustee of the
Trustshe:�,er , state, Lisa " understood that her duties were to: 1. Review
the"erafther s Wwill and understand what it provided and to do what it said; 2. To
determine what assets were owned by the Estate; 3. To protect those assets; and 4. To
act in the best interest of the Estate.
75
448. Initially following Mr, Mummats her�4 death, relations between the family members
were fine and all parties executed agreements and corporate documents needed to complete the
proposed plan of liquidation as proposed by the Esttate's attorneys,tax advisers and accountants.
449. Lisa Mer�$ad as a child and up until she became involved in thchef--xather�6 eEstate had
idolized her-older Robert- . 4tari a II.
450. Following that decision in 1987 not to sell Robert IlBeb the quarry operations relations
between Objeet, - Robert 11 N4umffl and Mrs. Mumma and LisatheExee�, became even
more strained.
451. Following each litigation filed by 9bjeet-BRobert 11 Mumma relations within the family
continued to falter.
452. On August 1, 1996 Mrs. Morgan and Mrs. Mumma and Lisa entered into an agreement to sell
their individual and the Estate's interest in Bobali; Corporation to Tiger Development, Inc.
totalling forty-seven (47) percent of the stock in consideration of 1.3 million dollars (Exhibit T-1
61).
453. The agreement required the consent of RBobert Il Mumma, Barbara' s,-°� >xu =ma and Linda Roth
Mufflin .
454. Linda Rofl+,Nkm+ma-and 9bjee or-Barbaras Murmna were in agreement with the sale. (Exhibit
T-185).
455. Objeetof- Robcrt 11Metnina would not agree to the sale claiming that he did not recognize the
Eestate's ownership in Bobali Corporation and the sale never occurred.
456. In 2000 Lisa Morgan sent notices to Robert Ilthe-Objeeters and Linda 44ti nmu regarding the
cash flow problems of Bobali Corporation and strongly suggested one or more pieces of real estate
be sold and also recommended a meeting to address concerns. (Exhibit T-175)
76
457. After the parties could not reach any agreement, discussions occurred between the
Estate and Barbaras Mumm regarding Barbara's purchase of the Bobali interests.
458. Barbbaras Mutmfna declined to move forward as she did not desire to displease her
hrathe RBobert 11 Mumma and the affect it might have to his litigation against the-- Mrs.
Mumma, LisaFNe& tFwes and the Estate. (Exhibit T-135).
459, Roebrt Il and Barbara ire C4bjesta-, were requested to pay their share of the real estate
taxes on the properties owned by Bobali Corporation and they refused.
460. Because of the lack of cash, and the failure of Robert 1I and Barbarat-he-Qb.jee-tors to
provide funds to pay their portion of the real estate taxes, Mrs. Barbara-M� Mumma
personally loaned money to the corporation to pay real estate taxes and avoid tax sales,
461. Since the death of Mrs.Bafhar. MeK: Mumma, relations between Lisa man with
Robert 11. Barbara and Lindathe vesiduafy bene{r Win' ° and siste., have also
been strained.
462. At times during the course of the administration of the Estate and the tTrusts, Lisa
Morgan has had times when she desired to cease being trustee; however, she has
continued in her appointed role.
463. During the administration of the Estate and the trusts established thereunder, Mrs.
Mumma, Lisa stems-and their accountants and advisers have provided
requested eEstate and tTrust information and documents, if the information or documents
were within their powers of control, to Robert II Barbara and Lindathe-t3 feetex,-
464. Objeetof Robert I1Man3ma had requested a review of certain corporate books and
records.
77
465. A meeting was scheduled at a Harrisburg law office and during the meeting, Objector
Robert 11Mt*nma.grabbed a stack of High Spec, lnc_the records and a fled the building and had
to be chased down the public street by Attorney Boswells °^
466. Alt}eetor Robert IIMumfi+a was caught and the records were retrieved and returned to the
law firm.
467. Since that time, Mrs. Mumma and Lisa t decided that Objecto Robert
IINUR n d would not be permitted to have access to original documents, only copies and that
he would be closely supervised.
468. Lisa Mei:,-, continues to review all bills including all attorney bills and she continues to
demand a lower fee or that partner's time be kept at a minimum and that associates be used.
469. Lisa Mofgan-would at times utilize local Harrisburg area attorneys or negotiate matters on
behalf of the Estate and the ffrusts created thereunder to keep fees and costs at a minimum.
470. Prior to the death of her 1atherMr, Mumma, Abjeetor-Barbara-M-, Mu a;had worked with
Mr. Mu nmahepfAer and was the Corporate Secretary for all the Mumma business.
471. Mr. MummaHer-f er or his attorneys would prepare documents and she would sign them.
472. She did not maintain any copies of any records.
473. Following the death of Mr. Mu mnahef—,, 01b eet arbara NItunn a-moved to
Colorado and had little or nothing to do with the administration of the Estate and the #Trusts
efeatd4 ereunder.
78
474. Objeetef Barbara "returned to the central Pennsylvania area and after
receiving the 2003 accounts became more active in reviewing Mrs. Mumma and
Lisa'st' ;, , administration of thel erft"e eEstate and Trusts.
475. Abjeeter Barbara Mumma requested the family hire a mediator to attempt to resolve
any personal issues between the family members.
476. The Estate and the tTrusts were required to hire attorneys and incurred legal fees for
a myriad of matters, including: tax advice, corporate structuring, estate issues, trust
issues, preparation of estate, trust accounts, tax returns, litigation matters in various
courts of record.
477. Mrs. Mumma and LisaThczsIate-, presented detailed bills of work completed by any
and all attorneys associated with every legal matter handled by any law firm hired by the
Estate or the Trusts , including the name of the person completing the work, the time
and rate of the attorney or paralegal associated with the matter.
478. Attorneys 3ese hn O'Connor and Brady Green and No Otto testified at length
regarding the need for specialized legal advice on certain legal and litigation matters,
the reasonableness of the attorney fees associated with the respective firms and for
the matters which had been assigned to those firms or attorneys.
79
Conclusions of Law
Those parties filing an objection to an account (with the exception of objections to fees or
commissions) bear the burden of proof. Estate of Geniviva. 450 Pa. Super 54, 675 A.2d 206 (1996).
Conclusions relating to the Obiections of Robert Al A4txrnmtr-II
1. Whether the Executrices/Trustees have grossly undervalued the assets of the Estate
Mrs. Mumma and LisaThe lixeetitriees and/of! Trustees of - Estate r
MiifnFaa= have properly valued the assets of the Estate. Objeeter—_Robert M Milm a- II
argued the values of certain assets, most important the quarrying operations, had been under-
valued by Mrs. Mumma and Lisa*' ° c°°° °-^ T^ °*° = The evidence upon which he based
this position was that the quarrying operation sold for more than three times the date of death
more than five years following the establishment of the estate-Estate. The values placed on
the various Eestate assets were determined by the Eestate's accountants and attorneys and
approved by Mrs. Mumma and Lisa*the-ex-e ems_. The Internal Revenue Service audited
the Eestate's return and adjusted the figures upward, which were accepted by the executrices.
The Eestate's accountant Mr. Hadley was a credible witness. Objeeter-=Robert M "r Mumi:a_
II produced no competent evidence to overcome the valuations determined by the Internal
Revenue Service audit and accepted by the Executrices.
80
2. Whether the Executrices/Trustees have dispronortionately allocated the assets of the Estate
into the Marital Trust.
The Seventh Article of Mr. Mumma's Last Will and Testament provides:
"SEVENTH: If my wife, BARBARA McK. MUMMA, survives me, I give and bequeath to
the trustees hereinafter named, an amount equal to fifty (50%) percent of my total gross estate as
finally determined for Federal Estate Tax Purposes, taking into account and including therein, for
computation purposes, my undivided interest in the value of all my interests in property which
pass or have passed to my wife under other provisions of this Will or otherwise than under this
Will, but only to the extent that such interests are, for the purpose of the Federal Estate Tax,
included in determining my gross estate and allowed as a marital deduction. In funding this Trust,
I authorize my Executors to use cash or other property or a combination thereof, and I direct that
any such other property so used shall, for the purpose of funding the trust, be valued as of the date
of its distribution. In computing the amount of this bequest, I direct that the values and amounts as
finally determined for Federal Estate Tax purposes shall control.
Notwithstanding anything to the contrary contained in this Will, I direct that (a) the Trust
shall not be funded with any property or the proceeds of any property which (1) would not qualify
for the marital deduction allowable in determining the Federal Estate Tax on my Estate or (2) is
includible in my gross estate for Federal Estate Tax purposes and also subject by reason of my
death to any inheritance tax, transfer tax, estate tax or other death duty in any foreign country or
political subdivision thereof, except that the property described in this clause may be allocated to
the Trust to the extent that other property of my Estate, which does quality for the marital
deduction, is not sufficient to fund the Trust in full; (b)that the trustee shall not retain in the Trust
beyond a reasonable time, any unproductive property as an investment to be held in the Trust; and
(c) that none of the powers granted to my Executors and trustees by this Will shall be exercised in
such manner as to disqualify the Trust or any part thereof from the marital deduction allowable to
determine the Federal Estate Tax on my Estate, except as may be hereinafter provided.
I direct that the trustees hold said amount, In Trust Nevertheless,
to manage, invest and reinvest the same, to collect the income and to pay over or apply the net
income to, or for, the benefit of my wife,
BARBARA McK. MUMMA, at least yearly. My individual trustee, other than my wife, solely and
within her discretion alone, is authorized to distribute to and for the benefit of my wife,
BARBARA McK. MUMMA, in addition to the income hereinabove specified, so much of the
principal of this Trust as she may deem necessary or advisable to reasonably provide for her
support, health, welfare, maintenance or comfort, to maintain for her a standard of living which
she has during our married life enjoyed, taking into account, however, my wife's income from
other sources including, but not limited to, all income from trusts, estates and business interests, as
well as available principal assets. Notwithstanding the limited invasion right of trust principal by
my one trustee for the use and benefit of my wife, which requires a deficiency in other available
funds, I give unto my wife a right, which shall not be cumulative, to request annually in writing a
distribution to her by the trustees from the principal of this Trust of up to Five Thousand
($5000.00) Dollars or up to five (5%) percent of the then principal of this Trust, whichever shall
be the greater, and the trustees,
81
upon receipt of such writing, shall make payment thereof to my wife during the calendar year in
which said writing was received. The annual request by my wife is not mandatory, but shall be
made, if desired, only by herself individually.
I hereby authorize my Executors, in their sole discretion, to elect that any part or all of
any amount passing under this article of my Last Will and Testament, to my wife, BARBARA
McK. MUMMA, in the event she survives me, be treated as qualifying terminal interest
property for the purpose of qualifying for the marital deduction allowable in determining the
Federal Estate Tax on my Estate. Without limiting the discretion contained in this foregoing
sentence, it is my exprectation that my Executor will make said election with respect to all of
any such amount, unless the timing of my spouse's death and mine and the computation of the
combined death duties of our two (2) estates renders such an election inappropriate.
Upon the death of my said wife, the principal of this Trust, as it is then constituted, shall
be paid over by my surviving trustee unto my children, ROBERT M. MUMMA, It,
BARBARA M. McCLURE, LINDA M. ROTH and LISA M. MUMMA, free of this Trust,
share and share alike, per stirpes and not per capita."
"When interpreting the provisions of a trust, "the polestar in every trust is the settlor's intent
and that intent must prevail. The rules for determining a settlor's intent are the same for a trust
as for a will. The settlor's intent must be ascertained from a consideration of(a) all the language
contained in the four comers of the instrument and (b) the distribution scheme and (c) the
circumstances surrounding the testator or settlor at the time the will was made or the trust was
created and (d) "the existing facts."
Technical rules or canons of construction should be employed only if the language of
the instrument is ambiguous or conflicting or the intent of the settlor or testator is for any
reason uncertain. When provisions of a trust instrument conflict, "they should be read in such a
fashion as to give effect to both and/or fulfill the intent of the settlor."
In Re Stella Scheidmantel, 2005 Pa. Super. 6; 868 A.2d 464, 488 (2005), citing In re Trust of
Hirt, 2003 Pa. Super 287, 832 A.2d 438,448 (2003) (other cites omitted).
The Pennsylvania Supreme Court has also given direction on construction of wills and the
proper method to interpret the intent of the testator:
"The primary consideration in the construction and interpretation of wills is that the
intent of the testator be followed . . . Absent ambiguity, that intent is to be
determined from "the four corners of his will," . . . The duty of the court is not to
determine what the testator might or should have said in light of subsequent events
but, rather, the
82
actual meaning of the words used ... Only if the language employed by the testator
is ambiguous should the court resort to canons of construction, (citations omitted)
Estate of Slough, 474 Pa. 177, 185, 378A.2d276, 280 (1977).
It is quite clear from the wording of Mr. Mumma's Last-=Will and Testament- that the
primary purpose for the trusts was to benefit Mrs. Mumma, during her
lifetime. The Seventh section reads in part: "If my wife, BARBARA McK. MUMMA, survives
me, I give and bequeath to the trustees hereinafter named, an amount equal to fifty (50%)
percent of my total gross estate .:.. I direct that the trustees hold said amount, In Trust
Nevertheless, to manage, invest and reinvest the same, to collect the income and to pay over or
apply the net income to, or for, the benefit of my wife, BARBARA McK. MUMMA."
One thing I have gleaned through the many days of hearing over these past years is the
Late= Mr. Mumma was a very savvy business man who loved his wife and children. He knew
that his business interests were many, that he had vast assets and a great amount of debt. He
knew the administration of his Estate would be a complex matter. Mr. Mumma established a
very detailed plan for the administration and distribution of his Eestate with the advice of
several noted and respected estate attorneys and accountants. He knew and understood that
which he desired and all provisions of his ten page Last Will and Testament_ and his three
page First Codicil have meaning to insure Mrs. Mumma#is,wife= was protected and provided
for during her lifetime, but who he desired to control and administer his Estate.
No expert is needed to show Mr. Mumma wanted that the maximum benefit be given to
his wife. No expert is needed to review the words of the document.
83
i
The first question is what is the "amount equal to fifty (50%) percent of my total gross estate
as finally determined for Federal Estate Tax Purposes." Answer found in Exhibit A-3: $17,296,337
multiplied by 0.50 equals $8,648,168.50.
The second question is need to ask is do I add any additional amount, need I subtract any
amount, or need I do nothing to the amount? Answer: I must be "taking into account and including
therein, for computation purposes, my undivided interest in the value of all my interests in property
which pass or have passed to my wife under other provisions of this Will or otherwise than under
this Will, but only to the extent that such interests are, for the purpose of the Federal Estate Tax,
included in determining my gross estate and allowed as a marital deduction." Prior to 1981 the
marital deduction was limited; however following the 1981 amendments to the Internal Revenue
Code, the marital deduction became unlimited. Prior to this time drafters of Wills containing typical
A, $ trusts read "fifty percent of my gross estate, excluding therefrom the value of all property
passing to my spouse under other Will provisions or outside my Will, ... ." The undersigned vivdly
recalls the changes to the tax code and the recommended proposed changes to take advantage of the
amendment. The language recommended was to delete the words EXCLUDING THEREFROM and
replace them with "taking into account and including therein." Therefore under Mr. Mumma's Will
property which Mrs. Mumma his-wife= received outside the will is to be considered part and parcel
of the$8,648,168.50. Mr. Mumma did not desire that this amount be reduced at all.
The allocations of the assets between the Mrrrarital and Rresiduary Ttrust were made
RMP-Urla ieable, The Eestate had a variety of
assets in many forms including personal, real and intangible property. Mrs. Mumma and LisaThe
e: eeutr-;ees_ consulted with their attorneys and accountants and reviewed differing scenarios before
making an informed decision in the division and placement of the various assets into the two Ttrusts.
Mr. Hadley was the most credible witness
84
regarding values. He testified that he adjusted the values of all the assets prior to the
distribution being made by Mrs. Mumma and Lisa t'•e—E*eeutr� . The division was
reasonable given the complexity of the estate and its various assets. The parties presented the
expert testimony of various attorneys who gave their opinions.
The question is did Mrs. Mumma and Lisa the take custody of the Eestate's
assets and administer those assets and preserve and protect the assets for the ultimate
distribution to the proper parties. Also did Mrs, Mumma and Lisa tom- exercise to
the degree of judgment, skill and care and diligence that a reasonably prudent person would
exercise in the management of his or her own affairs (see, Estate of Kurkowski. 487 Pa. 295,
400 A.2d 357 (1979)). Robert 11 T4ie-F3bjee— has not met his burden of proving they did
something imprudent or improper, In retrospect it is easy to state a party might have completed
a task in a differing manner. Here Mrs. Mumma and Lisa the exeeutrim_sought the advice and
counsel of numerous professionals. Mr. Hadley, the individual with the most independent
knowledge and the person most familiar with the businesses worked to calculate values. Many
scenarios were reviewed and a determination of the distribution of the assets between the
Ttrusts was made based on information available at the time. The assets Mrs. Mwmna and
Lisathne V-EeeiAfieL-,;_placed in each Ttrust were properly valued to achieve the required fundui;
level gf the Marital Trust with the mmairripl assets allocated to the Residual Truste€
apgre..4 _ Their actions were
proper under the terms of the deee denV-, 4— Will and—T° _ and were properly
administered in accordance with their duties as eFxecutrices.
3. Whether the Executrices/Trustees have incurred unnecessary capital gains taxes
fiduciary income taxes or inheritance taxes
85
E
Mrs. Mumma and Lisa Tk °°^ ^ ^ ° - ^'^°^_ have incurred no unnecessary taxes, capital gains,
fiduciary income tax, estate tax or inheritance tax. 9bjeetor-_Robert M. Mu PAa -11 produced no
credible evidence to support this objection. The undersigned notes that Mrs. Mumma and Lisathe
e*eeatr &eJ_ sought and obtained detailed tax advice from numerous attorneys and accountants. The
method they used to take advantage of the changing tax laws in 1986-87 coupled with the decision of
Mrs. Ra bares ei-- Mumma to defer the payment of the estate taxes until the date of her passing, saved
the Eestate a significant amount of taxes.
4. Whether the Executrix Barbara McK. Mumma is entitled to selectively withdraw
individual assets t assets-in-kind from the Marital Trust as opposed to receiving the designated dollar
amount or percentage.
The _ Will an44egamei#0. °1011°.1 *rr„z-:-- a= granted Mrs. Mumma
tntte--hi&Nvidew-the right to receive annually five (5)percent of the Mffiarital Ttrust. Therefore, Mrs.the
"' eOW4-Ree b rlara Ai.,K-.= Mumma, as the .. :.Iow and beneficiary of her We husband's will and the
'l:.-I-R.Aer_ was entitled to take her annual five percent in cash or in kind in lieu of
cash. Mrs. Mumma consulted with her attorneys, accountants and advisors, including Lisathe-ee-
exee *rtee and ee truste and determined that for certain years it was simpler and more advantageous to
receive the five percent in kind in Iieu of cash. Object - Robert "" . na_ II presented no legal
authority to support his objection. The five (5)percent withdraw in kind was proper.
5. Whether the Executrices/Trustees failed to properly account for the stock distributions to
Barbara McK. Mumma.
Mrs. Mumma and Lisa The e°Eeeutriees ftistees- properly accounted for any and all stock
distributions to Mrs. RBafbara-Mee—.. -Mumma. The accountant for the Eestate and the Trusts testified that
upon being notified of Mrs. Mumma desire to
86
take her five (5) percent, he would calculate the then stock owned by the Marital estate-Trust-
and transfer an amount equal to five (5)percent to Mrs. Mumma.
6. Whether the Executrices/Trustees failed to properly account for and/or distribute
estate income to Barbara McK, Mumma.
Mrs. Mumma and Lisj4ie tt% s— properly accounted for all distributions of
income to Mrs_9afbaFa-Ak _Mumma as the beneficiary of the income from both of the
Ttrusts. All income from the trusts was to inure to the benefit of Mrs. Muniina t"� dew e
widow_. The undersigned notes that in her capacity as eExecutrixee and trustee, Mrs. Mumma
refused to accept or take any commissions for her services even though she was entitled to do
so. 91jaeter_Robert A4 �a,II produced no evidence to support this objection.
7. Whether the allocations of Decedent's co orate stock to the Marital Trust violated ri hts
of first refusal accruing to the undersigned.
The issue raised by this objection had previously been previously determined by this
Honorable Court in Equity 66 (see above) and the determination that E}I3jee4or =Robert 14-.
NRn*ma-_II had no fight of first refusal affirmed following appeals.
This conclusion of law is the law of this case and was a,final determination. (See Mumma v.
Mumma, 433 Pa. Super 660, 639 A.2d 846 (1993), allocator denied 539 Pa. 679, 652 A.2d 1324
(1994)
g. Whether the Executrices/Trustees failed to allocate capital gains and increases in value of
estate assets during the administration to the Residuary Trust.
9bjeetof-_Robcrt "". "� z emu. ma- 11 produced no evidence to support any improper action on the
part of Mrs. Murmna and Lisa the-E*e� es— relating to allocations of capital gains or
valuation of assets of the Rresiduary Trrust.
87
9. Whether the Executrices/Trustees failure to significantly fund the Residuary Trust until
2002. while the Marital Trust was funded in 1987. violated the intent of the Decedent's Will.
Ob*4e,r-- Robert M-Mamma-II failed to produce any evidence that the 'Ttrusts were not properly
funded. When the marital Ttrust was funded, the remaining assets became the corpus of the
Rresiduary Tlrust. Mrs. Mumma and Ekeeuniees-Lisa-did not violate the intent of Mr.
Mumma'sdecedcent's !as t- will-ttnd-testan^�-.
10. Whether the Executrices/Trustees improperly accounted for the Fulton Bank property
Lemovne. Pennsylvania,
Objeetar-_Robert 4^ "tea_II failed to produce any evidence that Mrs. Mumma and Lisa
the executri-ees4fustees_ improperly accounted for the Fulton Bank property in Leymoyne,
Pennsylvania. Mrs. Mumma and LisaThe °;.eeutfiees Risk,. - properly accounted for the Fulton
Bank property located in Lemoyne, Cumberland County, PA. The accountant for the estate and
trusts, Mr. Hadley together with Mrs_*Ihe wieet tfiee , gafba--a °^ Tr._ Mumma and Lisa Me n_,
competently testified as to the value of this property,the various appraisals received and reviewed
prior to accounting for the same. Mrs. Berbahi-e .-Mumma was a credible witness. Lisa
Mos t-_was a credible witness.
11. Whether the Executrices/Trustees improperly accounted for the Leadville. Colorado rp�ert y.
9ltjeetor-=Robert M—. mma-_II failed to produce any evidence that the executrices/trustees
improperly accounted for the Leadville, Colorado property. The aeeeuntant r t,... e4
Mr. Hadley together with Mrs, th ex firy n---.I-,-^ 1`401 _Mumma and Lisa Mefaaft
competently testified as to the value of this property, the various appraisals received and reviewed
prior to accounting for the same.
12. Whether the Executrices/Trustees inmroperly accounted for the Bender property in Mount
Hollv Springs. Pennsylvania.
88
Objector-Robert M-Murnme-II failed to produce any evidence that the-Mrs. Mumma and Lisa
exeettt:k—e t ems, improperly accounted for the Bender property. Mrs. Mumma and Lisa Tke
e e. rproperly accounted for the Bender property. The accountant for the eEstate and Ttrusts, Mr.
Hadley together with Mrs. Mumma and Lis a' t triti;es a " a ' *"
s�.rcara-r.n-Rr.cr�,�rrvi�'fiui.,
competently testified as to the value of this property, the various appraisals received and applicable
values reviewed prior to accounting for the same. The property was valued at its purchase value as it
had been purchased within four months of Mr. Mummadecedent's passing.
13. Whether the Executrices/Trustees improperly accounted for the Grove property in Mount Hollv
Springs Pennsylvania.
Objector Robert "". M+ate-II failed to produce any evidence that Mrs. Mumma and Lisa the
exeetttrieesttrustee,,--improperly accounted for the Grove property. Mrs. Mumma and LisaThe
exeeutriees_ properly accounted for the Grove property. The accountant for the eEstate and trusts, Mr.
Hadley together with Mrs. Mumma and Lisathe exeetitriees. Bari---- ""rr" "gin aR NA--gan>
competently testified as to the value of this property, the various appraisals received and applicable
values reviewed prior to accounting for the same.
14. Whether the Executrices/Trustees undertook unilateral and unauthorized actions on behalf of
corporations and corporate enterprises and otherwise failed to comply with applicable state law and
regulations.
Objeelor-Robert M--Muttima-11 produced no competent evidence to support this objection. The
objector attempted to point to a single instance during the course of the twenty-five year plus
administration of a complex estate. It involved the handling of an insurance fire claim. The undersigned
notes that the claim had been handled by the insurance carrier. The carrier had proposed an amicable
settlement at no additional cost to the eEstate and the tTrusts ereatedzherea„der or to any beneficiary or
other party; however, Objeeter Robert 1'."--M-uit na II refused to sign the release. Signing the release
would have ended the matter.Because the release was not signed,
89
protracted litigation and appeals followed. As a result of Objector RBobgrt lI-Mmin*c's actions
greater time, effort and money were expended. In an appeal of this matter, a statement made in a
I Superior Court opinion, that Lisa Margatrin her capacity as manager of the property may have
acted in an inappropriate manner in signing certain documents relating to a commercial lease,
does not rise to the level of malfeasance or misfeasance as required by law. All acts by t Mrs.
Mumma and Lisa he—exec ' uslees were performed in compliance with their duties and
powers as set forth in Mr. Mumma's t' ° , na T Will awand within the
bounds of their powers as set forth in the law.
15. Whether the Executrices/Trustees have not recognized or have concealed shareholder
agreements that gavem the ownership of corporate stook.
Ob.jeeter-Robert NC "�n�-II continued to argue this position but presented no evidence to
support his objection. His argument that there such were agreements is fallacious. His position is
they did formerly exist, but he had no copies of them but remembers signing them. He also
argued Mrs. Mumma and Lisa N3e exerters t'n , the attorneys, the accountants and
anyone who may have had a copy destroyed the originals and the copies. He presented no person
who remembers seeing any such document, presented no testimony other than his own of the
agreements existence. Many of the witnesses he called on his behalf did not give testimony
support his argument. Objeetor Robert Ilwould state that the witnesses were lying and that it was
a cover up of a plot to steal his inheritance. Objeeum-Robert was not a credible
witness. Therefore having no competent evidence to support his claim, this object must fail.
16. Whether the Executrices/Trustees' actions and omissions with respect to shareholder
agreements would have precluded the estate from acquiring stock in multiple corporations
90
including. but not limited to Pennsylvania Supply Company. Pennsv Supply Inc Bobali. Corp.. Lebanon
Rock. Inc.. Hitch-Spec.. Ina.Nine-Ninty-Nine. Inc.. and/or 999. Inc.
(A,�r-Robert M Munung II failed to produce any competent evidence that Mrs.
Mumnta and LisaCs actions and omissions with respect to shareholder
agreements would have precluded the eEstate or the Trusts from acquiring stock in multiple
corporations, including, but not limited to, Pennsylvania Supply Company, Pennsy Supply Inc.,
Bobali Corporation:, Lebanon Rock, Inc., High-Spec., Inc., Nine-Ninety-Nine, Inc., and/or 999,
Inc. Mrs, Munupa and Lisp's T max« ;,;t c action with regard to any activity with
these entities was proper.
17. Whether the ExecutrioeslTrustees property cor7tralled the Decedent's shares in Hieh-
Spec Inc., Pennsylvania Suppl�Companv Pennsv Supply Inc Bobali Corp_ Lebanon Rock
Inc..Nine-Ninty-Nine. Inc.. and/or 999. Inc.
Objeek>wRobert 49--Merrtr a-II failed to produce any competent evidence that Mrs, Munnna and
Lisa's ,; utriees4fustees actions regarding the handling of decedent's shares in these various
corporations was anything but proper.
18. Whether the Executrices/Trustees violated the Share Restrictive A** er}�emont a !pp icable to
High-Spec. Inc. when they refused to offer to sell the Decedent's shares in High-Spec. Inc. to the
remaining shareholder at book value.
Objeemr Robert #v1 -Muffmna I1 produced no competent evidence that there was a restrictive
agreement and that the estate was required to sell its interest to any party at book value. It is noted that the
Florida Court determined Q .' Robert r wnn+a-II misappropriated assets from High Spec, Inc. to
himself and also awarded the estate its attorney fees. The evidence produced during the course of the
hearings show that Mrs. Mumma and Lisa's _m ...r: v ,j ; ,F actions regarding the handling of
estate's/trusts' interest in High Spec, Inc. wereas anything but improper,
91
19. Whether the Executrices/Trustees violated Section 3 of the Share Restrictive Agreement
applicable to High-Spec. Inc. when it transferred the Decedent's shares in High-Spec Inc to the
Residuary Trust in January 2002 (See generally Objection 414 filed May 27 2004).
Objeeter-_Robert Rio.—: a n a= II produced no competent evidence to show that Mrs. Mumma's
and Lisa's v° , ' .,tees: actions regarding the handling of Eestate's/Ttrusts' interest in High
Spec, Inc. was anything but proper.
20. Whether the Executrices/Trustees undervalued the stock of Pennsylvania Supply Company
Pennsy Supply Inc.. BobaIi Corp.. Lebanon Rock. Inc.. High-Spec- Inc.. Nine-Minty-Nine Inc..
and/or 999. Inc.
Qbjeeter-- Robert *4. "
n-,�� .— produced no competent evidence to show that Mrs. Mumma
and Lisae°°,.R� _ undervalued any stocks in which the Eestate had an interest. All
i
actions regarding the handling of Eestate's/Ttrusts' interest in the aforementioned corporations and
the values placed on these various estate assets were determined by the Eestate's accountants and
attorneys and approved by Mrs. Mumma and Lisa=a e—e*ec-utries_. The Internal Revenue Service
audited the Eestate's return and adjusted the figures upward, which were accepted by Mrs. Mumma
and Lisat.e ex-ee-. Later and prior to dividing the estate's assets into the trusts, Mr. Hadley
reviewed and adjusted values where appropriate.
21. Whether the Executrices/Trustees overstated the value of the Decedent's stock.
Abjeetar^Robert N17-tea_II produced no competent evidence to show that Mrs. Mumma
and Lisae°estees- over stated the value of any stocks.The values placed on the
various Eestate_assets were determined by the Eestate's accountants and attorneys and
approved by the executors.
92
The Internal Revenue Service audited the Eestate's return and adjusted the figures upward, which
were accepted by Mrs. Mumma and Lisatz e�fieee-.
22. Whether the Executrices/Trustees have engaged in corporate transactions which
conveyed assets out of Pennsylvania Supply Company. Kim Company. Pennsv Supply
Inc.. Bobali Corn.. Middle Park. Inc Nine-Ninty-Nine Inc and/or 999 Inc and other
unknown transactions.
91 jeetef-^Robert 4 �_II produced no competent evidence to show that Mrs.
Mumma and Lisaex-�+- improperly engaged in corporate transactions involving any
corporations in which the Eestate/Ttrusts had an interest or that any merger harmed or lowered
any values of the Ttrusts or Estate.
23. Whether the Executrices/Trustees fraudulently terminated the corporate existence
of Middle Park. Inc. via merger with another corporate entity.
Objeeter-_Robert M-ltim a-_II produced no competent evidence to show that Mrs. Mumma
and Lisae ee trice ,'t. = fraudulently terminated the corporate existence of Middle Park, Inc.
via merger with another corporate entity.
To the contrary, 9bjeeter=Robert M• A uw ia-_II signed the initial merger proposal of Middle
Park, Inc. into Bobali Corporation as director and then chose not to attend the formal shareholders
meeting formally approving the merger. He returned the Notice of the Meeting and marked it "out
93
of town." The merger was approved and the plan of Merger filed with the appropriate Colorado
authorities.
24. Whether the Executrices/Trustees knowingly concealed corporato records that were
known to be altered in their effort to conceal the identity of true stock ownership.
8bjeeter-=Robert M "r :m,«_II produced no competent evidence to show that Mrs. Mumma
and Lisa°°°° t— s_ knowingly concealed corporate records that were known to be altered
in their effort to conceal the identity of true stock ownership.
Objeeter-_Robert M-. mma,_ 11 continued to claim the estate concealed signed agreements
which would have granted him certain rights. He also denied signing agreements which bore his
signature and which had been previously determined to have been knowingly executed by him (See
Equity 66, supra.). He argued that the MRA I and MRA II agreements provided him with rights
which had been previously decided and which were the subject of an interim report. Also at the
hearings he attempted to re-litigate the issue of whether there were two separate and distinct Pennsy
Supplysi Imo_: o0ne company having a comma and the other not having a comma. He did this in
spite of having presented the same to His Honor in a former action and having a final determination
of the issue and also a second mandamus action in the Commonwealth Court on the same issue
which was summarily dismissed. He presented a proposed expert who attempted to testify that all the
courts were wrong and that Robert 11 was correct and that two separate
corporations existed.
94
E3bjeetor� Robert M N3 aroma_ 11 produced an original document filed by the attorneys for the
}✓estate with the Commonwealth's Bureau of Corporations. On the face of the document appeared
two different time stamps and also two different names for the Secretary of the Commonwealth.
Objeeter-_Robert Mu me--II argued that this showed the attorneys went and changed the document
or that this somehow showed they were altering stock ownership. Other than producing the
i
document and making the argument, Robert Objec4or—ll- offered no other credible or relevant
evidence. Practicing attorneys do make errors in documents and what appears to have occurred is
that the document was filed by the estate's Philadelphia law firm (must likely by mail as it was
dated 1987). A clerk received it and time stamped it and sent it to another clerk. The document was
reviewed had a signature stamped on it and went to the recording division, but someone notice an
error and the form was returned to the estate's attorney (again most probably through the postal
service). What the problem was has not been shown, nor would the undersigned ever be able to
know. Was it a block was not checked, an address not typed, a signature not properly placed on the
document? Regardless, the form was returned to be corrected. The law firm received the time-
stamped and signature stamped form in the mail, presumably corrected the error and returned the
corrected document to Harrisburg. In the interim the Secretary of the Commonwealth resigned his
position and a new Secretary assumed that office. (The undersigned takes administrative notice that
this did in fact occur). The corrected document was received by a clerk in the Corporation Bureau
and upon opening the envelope containing the corrected form with the old time stamp and stamped
signature, had a second time stamp placed on the document. The new document was sent to another
clerk or supervisor for review. Once the error was determined to be corrected, a new signature
stamp was placed on the document, the document was recorded, a copy placed on micro film and
the original document with the two time stamps and two stamped signatures returned to the
Eestate's law firm in
95
Philadelphia. The document in and of itself shows no concealment or attempt to doctor
corporate records on the part of Mrs. Mumma and Lisathe ens t,i°°°r stee-.
The undersigned notes that Robert IItheOb-jeetof- had requested and been given access
of the corporate records of High Spec, ine. at a Harrisburg law office. The credible testimony
showed that Robert lhhe-Objeeter_ took those records, ran out of the law office and attempted
to flee with the corporate records. Tea ti � orne}�
f>rfls:-
If any records have disappeared, the only evidence received to support any disappearance was
the former conduct of tke 9b}eetor=Robert M7-Mumma- II.
25. Whether the Executrices/Trustees concealed their knowledge of the Decedent's
activities prior to April 12. 1986 which became known to them and their accounts and
which they further concealed via the Stradlev Ronin law firm without any explanation of
same or without otherwise disclosing same to the shareholders.
Ola}estsr-__Robert M u a- II produced no competent evidence to show that Mrs.
Mumma and Lisaex-�� or any attorney or law firm hired by them concealed any
knowledge of Mr. deeedefft4,Mumma's- activities prior to his death.
26. Whether the Executrices/Trustees fraudulently misappropriated life insurance proceeds
rightfully owned by Pennsylvania Supply Company and Pennsy Suppl ,
Abject - Robert M. unman_ II produced no competent evidence to show that Mrs.
Mumma and Lrsae°°° -fraudulently misappropriated any life insurance proceeds.
96
27. Whether the Executrices/Trustees individually assumed corporate designations which were
not set forth in any corporate by-laws.
Obje�_Robert M " na_ II-produced no competent evidence to show that Mrs. Mumma
and Lisaex° = assumed any corporate designation to which they were not
authorized or permitted,
28. Whether the Executrices/Trustees individually assumed corporate positions to which they
were not elected and which were not otherwise authorized.
04jeetor—Robert M. °r N ekinim— 11 produced no competent evidence to show that Mrs. Mumma and
Lisaexftutr,iee�- ever assumed any positions corporate or otherwise to which they were not
authorized.
29. Whether the Executrices/Trustees have awarded themselves salaries and health insurance
benefits that were never authorized.
Objeetot -Robert hdTr im in�a_11 produced no competent evidence to show that Mrs. Mumma and
Lisaexeetn4ee°r�_ awarded themselves salaries or health care benefits to which they were not
authorized. As previously concluded, Mrs. Babas--Mc^Y,._ Mumma_ and- trustee-
personally refused any commissions for serving as executrix or trustcgin swab e ;* Lisa
did receive commissions and fees which were reasonable based on the time and effort involved in the
management of the Eestate and the Ttrusts oft 4hereu*der_. Although Mrs. Mumma was entitled to
all the income from both trusts, she demanded and directed that all fees and commissions
97
paid to her Lisaeo-e �_ and co-trustee be withdrawn from the trust's income. Mrs.
Mumma testified she did this so that her other children's share of the trust would not be
dimmishcd.
30. Whether the Executrices/Trustees have failed to account for or document si nificant
chan es in maior investment holdings of the Estate.
04jeeter-_Robert m n II produced no competent evidence to show that Mrs.
Mumma and Lisaexecutfices yes=failed to account for or document changes in
major investment holdings of the Eestate. Mrs. Mumma and LisaT4e
eetit c��- employed competent attorneys, accountants and others to document
and account for all matters relating to the,Eestate and Ttrusts created thereunder.
31. Whether the Executrices/Trustees engaged in and/or have continued to engage in a
systematic pattern of self-dealing and personal enhancement.
9bjeetor=Robert M.-M aim-_II produced no competent evidence to show that Mrs.
Mumma and Lisae°ieotfiees4uslees- have continued to engage in a systematic pattern
of self-dealing and personal enhancement. Although this was a major theme of Objeete
RobertII- throughout the hearings, Objeeto�_Robert h
° .� -Mth-a a -11 could not provide
any evidence to support his argument. On numerous occasions he would claim to have
evidence of the same but none was provided in spite of numerous requests from the
undersigned.
32. Whether withdrawals from the Marital Trust have substantially diminished the interests
of the beneficiaries/remaindermen while greatly enhancing the interests of the
Executrices/Trustees.
The deeedentls� Wwill ate aestaatient provided that Mr. Mumma's beloved widow, Mrs.
Barbara McK. Mumma, would receive all the income from both the marital trust and the
residuary trust. In addition the decedent's beloved widow was entitled to an annual five (5)
98
percent "scoop out" of the Mmarital Ttrust. Following the funding of the Ttrusts and through the date of
sale of the Pennsv Supp Buusincsses to CRI I ply"CRIF�1 in July 1993; on an annual basis, Mrs.
Mumma = exercised this right and received five (5) percent of the then value of
the Mmarital Ttrust, in kind in lieu of cash. After the sale yielded cash to the Marital Trust sufficient to
fund her annual withdrawals, her annual exercises, of her withdrawal right were satisfied in cash. In
respect to the payments to Mrs. Mumma and Lisa as the ..:.,ew of d-------, the -e° e
acted appropriately and in accordance with the clear language of the lair Wwill and test tent-_and the
duties imposed upon them by the testatar-s--WwilI and the law. 84jeetef-_Robert'" _11 argues
that because Mrs. Mumma was also the--an eExecutrice and trustee that her receipt of funds or Eestate
assets as widow was somehow improper. He further argued that because his mother favored "meter;_
Lisa Morgan- in her personal estate over him and his other siblings supports his theory. What Mrs.
Paf:harm ; _ Mumma did with her estate is of no matter to the audit of these accounts. Robert
Objector-Il- is attempting to intertwine a matter better suited for challenges to Mrs. Mumma ate-
's estate. We here are concerned not with Mrs. Mumma's Last Will and Testament, but the Eestate and
Ttrusts established under Mr. Mumma's4he-Last=Will afid Testament of Rebei4 *1 Mumffla_
33. Whether the Executrices/Trustees prorserly selected and retained Estate counsel.
9jeeter_Robert "a —".4un+ma_II produced no competent evidence to show that Mrs. Mumma
and Lisaen::^ _ improperly selected and retained Estate counsel. Mrs. Mumma and
LisaTrhe-ex s- retained Mr. Mumma's farmer estate planning attorneys. They also retained
and maintained a relationship with Mr. Mumma's former accountants and financial advisors.
From the beginning this estate was problematic: huge debt, anxious creditors, worried
employees, scrambling vendors, changing tax landscape together with executrices who had little or
no business experience. The executrices needed help and they sought out the help of experts. The
initial expenses for counsel fees given the circumstances was
99
proper. Mrs. Morning,and LisaTie-ems,_ have presented ample testimony to support the
need for proper counsel. They selected attorneys whose skill and standing in the legal
community is unquestioned. The amount of work performed for the return ultimately received
when the Eestate's quarrying operation was sold is proof positive. Two inexperienced persons
took a faltering quarrying operation and within five years sold an asset everyone in 1987
believed to be worth between 5-7 million dollars, to a group of Irish 'investors for 35 million
dollars. Mrs. Mumma and Lisa wcre4=hn .,°.�Tna a=o called upon to defend or initiate numerous
actions and appeals involving Objector-- Robert M�u+nrna II. It appears that Mrs. Mumma
and Lisa werethe-estate-was_ successful in all its actions with Robert Il£?� _, At
first blush, the undersigned believed it may have been imprudent to initiate the Florida action.
That action resulted in a finding that Robert II _ had misappropriated real
estate owned in part by the Eestate to himself, but the action and the appeals had cost the estate
more money than the value of the property. The undersigned was unaware that prevailing
parties are awarded attorney fees and all the attorney fees paid together with interest is part of
the award. Tie--tnrstee- Lisa Morgan-_testified that the trust will be attempting to collect this
debt from Robert which is not only its right, but a duty.
Attorneys employed by an eI✓state or tTrust are entitled to reasonable and just
compensation for the services provided to the estate or trust. See U.S. National Bank in
Johnston v. Campbell 354 Pa. 583. 47 A.2d 697 (1946). The Pennsylvania Supreme Court has
set forth a number of factors to consider in making a determination of whether the fees are
reasonable and just and they include:
a. amount of work performed,
b. character of services rendered,
c. difficulty of problems involved,
100
d. importance of the litigation,
e. amount of money or value of property in question,
f. degree of responsibility incurred,
g. whether the fund was created by the attorney,
h. professional skill and standing of the attorney in his profession,
i. results he was able to obtain,
k. ability of the client to pay a reasonable fee for the services rendered.
See, Estate of LaRocca. 431 Pa. 542, 246 A.2d 337 (1968).
Where an estate requires additional legal services due to unusual complications and
circumstances, such fees are appropriate. See, McClatchv v. Mecke. 492 Pa. 352, 424 A.2d
1227 (1981). The complications facing Mrs. Mumma and Lisathe exeeutfiee 4ru tees- in this
matter were many including the constant legal actions by Robert IlObjeeter Bob Mkifflin -.
Having reviewed the statements and invoices for legal fees presented and having heard
the testimony of the attorney's involved or their firm's representatives who had familiarity with
the fees and matters associated with each matter; having heard the testimony of the parties;
having evaluated the difficultly and necessity of each legal matter, and the particular attorney or
firm selected to perform the task; together with the individual litigation, I conclude after
considering the factors established by the Pennsylvania Supreme Court that all attorney fees and
costs associated with the administration of this estate and the trusts were reasonable.
101
34. Whether the Executrices/Trustees are paving duplicative excessive or,unjustified
counsel fees to Estate counsel.
9bjeetb-F_Robert M--Mumfft—_II produced no competent evidence to show that Mrs.
Mumma and Lisae; - , �s_ are paying duplicative, excessive or unjustified counsel fees.
Mrs. Mumma and Lisa The estates _bears the burden to show that their
counsel fees were reasonable and proper. And as discussed above, Mrs. Mumma and Lisathe-estate-
produced every detailed invoice for attorney fees and costs associated with the administration of the
Estate and the Trusts. No duplicity was shown at the hearings before the undersigned. The
undersigned notes that a vast majority of the fees and costs have been associated with Objector-_-
Robert "". M uffi a- II's numerous challenges and lawsuits. Of all the matters initiated by Objeeter
=Robert 1I "r. ;;in,;,,,= he did not present any matter in which he was successful.
35. Whether the Executrices/Trustees are paving excessive or unjustified accountant fees to the
Estate accountant(s)
fir-=Robert-M---Mufnfl+a-_II produced no competent evidence to show that Mrs. Mumma
and Lisaet _eutr:,,e ,_ , = are paying duplicative, excessive or unjustified accounting fees.
Mrs. Mumma and LisgThe - and trusts produced every detailed invoice for accounting fees
and costs associated with the administration of the Estate and the trusts. The Estate also
presented competent testimony from Mr. Hadley and from the executrices/trustees as to the
amounts charged and the necessity of the services rendered. No evidence was presented
otherwise, therefore this Objection must fail.
102
36. Whether the Executrices/Trustees have per2etuated and engaged in and continue to
e etuate and engage in an enterprise and/or scheme of fraudulent conveyances of estate assets.
Abjeetor—=Robert una -II produced no competent evidence to show that Mrs. Mumma and
Lisaexee • �_ have perpetuated and engaged in a scheme of fraudulent conveyances of
Festate Aassets. Mr. Mumma's'ch d d t- Wwill a=an4estaffien_provided that Mr. Mumma's
beloved widow, Mrs. Barbara MeK. _Mumma, would receive all the income from both the Mmarital
Ttrust and the Rresiduary Ttrust. In addition Mrs. Mumma was entitled
to an annual five (5) percent "scoop out" of the Mrrtarital Ttrust. Following the funding of the Ttrusts,
and through the date of the sale 4f the Pennsv Supply Businesses to CRH in July
1993, on an annual basis, Mrs. Mumma exercised this right and received f ve {5} percent of the then
value of the Martial Trust in kind in lieu of cash. Aftcr the sale ieY lded cash to the Marital Trust
sufficient to fund her annual withdrawals lter annual exercises of her withdrawal right were satisfied in
cash
^— b
itw&4al-4mis , ii ' '' oa r_In respect to the payments to Mrs. Mumma, Mrs. Mumma and Lisa
as the�do•.of deeed m, the e,,,- acted appropriately and in accordance with the clear
language of the last will and testament and the duties imposed upon them by the testator's Nklwill and
the law. Obieeter-_Robert "^. " „,. =II argues that because Mrs. Mumma was also the-an- Epee trice
Executrix- and trustee that her receipt of funds or Eestate assets as widow was somehow improper. He
further argued that because Mrs. Mummahis,�r_ may have favored Lisahis siste°_ in her personal
estate over him and his other siblings this is evidence of some alleged subterfuge on the part of Mrs.
Mumma and Lisat ,ems_. How Mrs. Mumma handled her personal assets and to whom
she may have given her assets is of no concern to the review of these accounts. Objector is attempting to
intertwine a matter better suited for challenges to his mother's estate. We here are concerned not with
Mrs. Mumma's Last Will and Testament, but the Eestate and Ttrusts established under Mr.
Mumma'sthel7ast_ Will and Testament of Rebert M ^.4um .a-.
103
37. Whether the Executrices/Trustees have failed to account for or document the contents of
all safe deposit boxes owned individually or jointly by the Decedent.
Objeetor--_Robert '�T.- ima-_II produced no competent evidence to show that Mrs.
Mumma and Lisae*eetzt4ceskrxstees- failed to account for or document the contents of all
safety deposit boxes. Robert Objector-!]- that these alleged boxes may have contained
some legal documentation which would support his many theories. As the undersigned stated to
Robert lithe-04�e*ter_ during the hearings, if there were signed legal documents giving the
Robert 913jeeter-Il_priorities or rights, one would think he would at least have a photocopy or a
signed copy of the document or some other evidence of the same. Although he promised
evidence of the same,none was ever produced.
The evidence produced showed there were two boxes. The first box was jointly owned with
Robert 1104 a= and located at the Dauphin Deposit Bank in Harrisburg. The
second box was jointly owned with Mrs. Mumma and located at the Fulton Bank. Both boxes
were inventoried. The first box was inventoried by the Department of Revenue which noted it
contained no items of value. This box was opened by Bank personnel in the presence of Mrs.
Mumma during a will search. No will was found and the box closed to be later inventoried. The
second box was inventoried by Mr. Hadley and his inventory was filed.
The undersigned notes that Robert ll0bjecte}-Beb :tea= filed an action against
Dauphin Deposit Bank relative to their conducting a will search of the box following Mr.
Mumma's"i _. The Dauphin County Court did not rule in Robert llobjeeter Bob
Mumma-'s favor.
104
38. Whether the Executrices/Trustees have failed to account for or document the value
of all bank accounts owned individual) or ointl by the Decedent.
Objeeter-- Robert W� 11 produced no competent evidence to show tbai
i
Mrs. Mumm and Lisaexeemtreesltrest - failed to account for document the value of bank
accounts owned individually
or jointly by Mr, Mumma"-�-,
39. Whether the Executrices/Trustees have failed to account for or document the Decedent's
documents. contracts, and other records throughout the administration of the Estate
including the failure to account for their storage and record-keeping in I'ennsvlvatua
Florida. Europe, and elsewhere.
Qbjaeter_Robert M. 4u ma II produced no competent evidence to show thaw
Mrs. Mumma and Lisae°�� �- failed to account for Mr. Mumma'sthe
ee
dam = records and papers. In addition to the
accounts provided in this matter, Mrs. Mumma and Lisath - and accountants have
provided Ohjeete�Robert 1I-4fumn+a_ with thousands of documents. He argued that he was
entitled to review and receive a copy of the hundreds of thousands of documents of all the
businesses relating to any of his father's business from the all times prior to his father's death
up and through the present. 9bjectef—Robert ll-144urr +a- also argued that he was entitled to all
personal communications between Mrs. Mumma and Mr. Mumma h s a�ae
There was evidence that Mrs. Mumma prior to her passing was storing some family paperwork
in Florida. 94.jeeteT--=Robert r "maw:, II presented no legal authority nor any competent
evidence to support this objection,
105
40_ Whether the Executrices/Trustees refused to entertain the highest and best offers of
archase of the Decedent's property and/or enterprises thereby fig to maximize the
value of the Estate
Objeeter_Robert M. "Baia-_II produced no competent evidence to show that Mrs. Mumma
and Lisa° e-,4f *tees- failed to entertain the highest and best offers to purchase any of the
Estate's or the Trusts' assets.
To the contrary, the previous decisions of this Honorable Court and the evidence presented by
Robert lTM° = through his many witnesses evidenced that Mrs. Mumma and Lisathe
—tnees4rustees- had maximized the value of the Eestate and the Trusts. At the time of his
death Mr. Mumma's businesses were in disarray and overburdened with debt. Mrs. Mumma and
Lisa Pie-ex-e — through their hard work and effort and in spite of the adverse actions of the
Robert 9bjeeter-Il- began a course of actions which greatly enhanced the value of the Eestate's
and the Trusts'assets. Judge Sheeiey determined that it was Robert IIthebjester-'s actions which
were diminishing the value of the Eestate's assets and that Mrs. Mumma's and Lisa's—the
Eyie2t ts- actions were not.
Robert Iln 1- *n a -suggested during the hearings that he would have paid
more to the Eestate than was ultimately paid by CRHR. CRHR paid the estate 35 million dollars.
It must be noted that CRHR had originally offered even more money for the businessesestate'-s
_, that being 43 million. Judge Sheely noted irk= that Robert
119bjee�na=though his actions had actually cost the Festate 24-0 million dollars.
The undersigned notes that Robert IIObjeeter—l4eb-Is4urmna- contacted representatives of
CRHR shortly after Mr. Mummahis t --'s death. There was no evidence that he shared this
information with Mrs. Mumma and Lisa therst«e-. Mr. Hill had a clear memory of the place and
time of the meeting in 1986. After speaking to Mr. Hill, the head of acquisitions, Robert
110bje _began negotiating the purchase the quarrying
106
operations from the Estate. During these negotiations in 1987 Robert I10bjeetofr- Mufn;=a-=
valued the quarrying operations between 5-7 million dollars. Fortunately for the Estate, no
agreement could be reached and the agreement with CRHR was settled in 1993.
The undersigned also notes that Robert II - was obstructive when the
estate has attempted to sell its interest in Bobali Corporation. Mrs. Mumma and LisaThe
e*eeu riees- have never refused to entertain the highest and best offers for any asset of the
Eestate or the Trusts.
41. Whether the Executrices/Trustees have failed to carry out the terms of the
Decedent's Will and/or acted in contravention of the Decedent's testamentary plan.
8 .t -, �-Robert-M. �- II produced no competent evidence to show that Mrs. Mumma
and Lisaexeea'f'.oe��'ee,,4- failed to carry out the terms of Mr. Mummathe-Deeedent_'s Will
or acted in any manner which would have contravened Mr. Deeedefft-Ls-Mumma-'s testamentary
plan. Conversely the evidence produced at the hearings including the opinion of Attorney
Jonathon-Christ, Robert 91 s iI-'s own witness, showed Mrs. Mumma and Lisathe
executrices ru9tees- were cognizant of their duties and when in doubt sought the legal advice
of their counsel and advisors. The undersigned notes that in each of the many legal actions
involving this Estate and the Trusts whether initiated by Robert Objj terIl-, by the Estate or by
others, the Estate the Trusts and Mrs. Mumma and Lisa-and the—., utefsitrustees_ have not
favored the position espoused by Robert Objeet-irII-. Based on the documentary evidence and
all the testimony of the witnesses and taking into account their respective credibility and
appropriate weight to be given to each document or person, I must conclude Mrs. Mumma and
Lisathe Exec,,trieesi+-ustees- were diligent in the performance of their duties and acted in
accordance with the dictates of the Last Will and Testament of the decedent.
107
42. Whether the Executrices/Trustees are subject to surcharge attributable to their
acts or omission.
Having concluded that Objeeter-_Robert M-:gun a II has failed to show that Mrs.
i� Mumma and Lisatie- Rx°e ;zesAmstees- have done anything improper in the
administration of the Eestate and the Ttrusts, in the interpretation of the Last— Will and
'T'-, 4anw ri_ or in any other matter, no surcharge attributed to Robert "4. Mumma -11
objections would be proper.
Conclusions relating to the Obiections of Barbara "- .�—_�m R-
43. Whether the selection of assets to be distributed by the Marital Trust and to the
Residuary Trust was appropriate In order to resolve this objection and several others,it
will be necessary to understand the justification for what appeared to be a
counterproductive asset distribution strategy. Assets for which rapid appreciation could
be expected were placed in the Marital trust, not the Residuary Trust, thereby creating
the potential for unnecessary estate tax liability upon the death of Barbara McKimmie
Mumma.
The Seventh Article of Mr. Mumma's Last Will and Testament provides:
"SEVENTH: If my wife, BARBARA McK. MUMMA, survives me, I give and bequeath to the
trustees hereinafter named, an amount equal to fifty (50%) percent of my total gross estate as
finally determined for Federal Estate Tax Purposes, taking into account and including therein,
for computation purposes, my undivided interest in the value of all my interests in property
which pass or have passed to my wife under other provisions of this Will or otherwise than
under this Will, but only to the extent that such interests are, for the purpose of the Federal
Estate Tax, included in determining my gross estate and allowed as a marital deduction. In
funding this Trust, I authorize my Executors to use cash or other property or a combination
thereof, and I direct that any such other property so used shall, for the purpose of funding the
trust, be valued as of the date of its distribution. In computing the amount of this bequest, I
direct that the values and amounts as finally determined for Federal Estate Tax purposes shall
control.
108
Notwithstanding anything to the contrary contained in this Will, I direct that (a) the
Trust shall not be funded with any property or the proceeds of any property which (1) would not
qualify for the marital deduction allowable in determining the Federal Estate Tax on my Estate
or (2) is includible in my gross estate for Federal Estate Tax purposes and also subject by
reason of my death to any inheritance tax, transfer tax, estate tax or other death duty in any
foreign country or political subdivision thereof, except that the property described in this clause
may be allocated to the Trust to the extent that other property of my Estate, which does quality
for the marital deduction, is not sufficient to fund the Trust in full; (b) that the trustee shall not
retain in the Trust beyond a reasonable time, any unproductive property as an investment to be
held in the Trust; and (c) that none of the powers granted to my Executors and trustees by this
Will shall be exercised in such manner as to disqualify the Trust or any part thereof from the
marital deduction allowable to determine the Federal Estate Tax on my Estate, except as may be
hereinafter provided.
I direct that the trustees hold said amount, In Trust Nevertheless,to manage, invest and
reinvest the same, to collect the income and to pay over or apply the net income to, or for, the
benefit of my wife,
BARBARA McK. MUMMA, at least yearly. My individual trustee, other than my wife, solely
and within her discretion alone, is authorized to distribute to and for the benefit of my wife,
BARBARA McK. MUMMA, in addition to the income hercinabove specified, so much of the
principal of this Trust as she may deem necessary or advisable to reasonably provide for her
support, health, welfare, maintenance or comfort, to maintain for her a standard of living which
she has during our married life enjoyed, taking into account, however, my wife's income from
other sources including, but not limited to, all income from trusts, estates and business interests,
as well as available principal assets. Notwithstanding the limited invasion right of trust principal
by my one trustee for the use and benefit of my wife, which requires a deficiency in other
available funds, I give unto my wife a right, which shall not be cumulative, to request annually
in writing a distribution to her by the trustees from the principal of this Trust of up to Five
Thousand ($5000.00) Dollars or up to five (5%) percent of the then principal of this Trust,
whichever shall be the greater, and the trustees, upon receipt of such writing, shall make
payment thereof to my wife during the calendar year in which said writing was received. The
annual request by my wife is not mandatory, but shall be made, if desired, only by herself
individually.
I hereby authorize my Executors, in their sole discretion, to elect that any part or all of
any amount passing under this article of my Last Will and Testament, to my wife, BARBARA
McK. MUMMA, in the event she survives me, be treated as qualifying terminal interest
property for the purpose of qualifying for the marital deduction allowable in determining the
Federal Estate Tax on my Estate. Without limiting the discretion contained in this foregoing
sentence, it is my exprectation that my Executor will make said election with respect to all of
any such amount, unless the timing of my spouse's death and mine and the computation of the
combined death duties of our two (2) estates renders such an election inappropriate.
Upon the death of my said wife,the principal of this Trust, as it is then constituted, shall
be paid over by my surviving trustee unto my children, ROBERT M. MUMMA, II, BARBARA.
M. MCCLURE, LINDA M. ROTH and LISA M. MUMMA, free of this Trust, share and share
alike, per stirpes and not per capita."
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"When interpreting the provisions of a trust, "the polestar in every trust is the settlor's intent and that
intent must prevail. The rules for determining a settlor's intent are the same for a trust as for a will. The
settlor's intent must be ascertained from a consideration of(a) all the language contained in the four
comers of the instrument and (b) the distribution scheme and (c) the circumstances surrounding the
testator or settlor at the time the will was made or the trust was created and (d) "the existing facts."
Technical rules or canons of construction should be employed only if the language of the instrument is
ambiguous or conflicting or the intent of the settlor or testator is for any reason uncertain. When
provisions of a trust instrument conflict, "they should be read in such a fashion as to give effect to both
and/or fulfill the intent of the settlor."
In Re Stella Scheidmantel, 2005 Pa. Super. 6; 868 A.2d 464, 488 (2005), citing In re Trust of Hirt,
2003 Pa. Super 287, 832 A.2d 438,448 (2003) (other cites omitted).
The Pennsylvania Supreme Court has also given direction on construction of wills and the proper
method to interpret the intent of the testator:
"The primary consideration in the construction and interpretation of wills is that the intent of
the testator be followed . . . Absent ambiguity, that intent is to be determined from "the four
corners of his will,". .. The duty of the court is not to determine what the testator might or
should have said in light of subsequent events but, rather, the actual meaning of the words used
... Only if the language employed by the testator is ambiguous should the court resort to canons
of construction, (citations omitted)
Estate of Blough, 474 Pa. 177, 185, 378A.2d276, 280(1977).
It is quite clear from the wording of Mr. Mumma's has+-_Will arid-Testae ern- that the
primary purpose for the trusts was to benefit his wife;_ Mrs. 9afbara-Me r_ Mumma, during her
lifetime.
The Seventh section reads in part : "If my wife, BARBARA McK. MUMMA, survives me, I give
and bequeath to the trustees hereinafter named, an amount equal to fifty (50%) percent of my total
gross estate .... I direct that the trustees hold said amount, In Trust Nevertheless,to manage, invest
11.0
and reinvest the same, to collect the income and to pay over or apply the net income to, or for, the
benefit of my wife, BARBARA McK. MUMMA."
One thing I have gleaned through the many days of hearing over these past years is the Late- Mr.
Mumma was a very savvy business man who loved his wife and children. He knew that his
business interests were many, that he had vast assets and a great amount of debt. He knew the
administration of his Estate would be a complex matter. Mr. Mumma established a very detailed
plan for the administration and distribution of his estate with the advice of several noted and
respected estate attorneys and accountants. He knew and understood that which he desired and all
provisions of his ten page Last Will and Testament and his three page First Codicil have meaning
to insure Mrs. Mummahis-wife= was protected and provided for during her lifetime, but who he
desired to control and administer his Estate and the Trusts.
No expert is needed to show Mr. Mumma wanted that the maximum benefit be given to
Mrs. Mummahis"fe-. No expert is needed to review the words of the document.
The first question is what is the " amount equal to fifty (50%) percent of my total gross
estate as finally determined for Federal Estate Tax Purposes." Answer found in Exhibit A-3:
$17,296,337 multiplied by 0.50 equals $8,648,168.50.
The second question is need to ask is do I add any additional amount, need I subtract any
amount, or need I do nothing to the amount? Answer: I must be "taking into account and including
therein, for computation purposes, my undivided interest in the value of all my interests in property
which pass or have passed to my wife under other provisions of this Will or otherwise than under
this Will, but only to the extent that such interests are, for the purpose of the Federal Estate Tax,
included in determining my gross estate and allowed as a marital deduction." Prior to 1981 the
marital deduction was limited; however following the 1981 amendments to the Internal Revenue
111
Code, the marital deduction became unlimited, Prior to this time drafters of Wills containing typical
A, B trusts read "fifty percent of my gross estate, excluding therefrom the value of all property
passing to my spouse wider other Will provisions or outside my Will, ... ." The undersigned vivdly
recalls the changes to the tax code and the recommended proposed changes to take advantage of the
amendment. The language recommended was to delete the words EXCLUDING THEREFROM and
replace them with "taking into account and including therein," Therefore under Mr. Mumma's Will
property which Mrs. Mummahis-�- received outside the will is part and parcel of the
$8,648,168.50. Mr. Mumma did not desire that this amount be reduced at all.
The allocation of the assets between the Mmarital and Rresiduary Ttrust was made oronerly
to achieve the required funding level of the Marital Trust with the remaining assets allocated to the
Residual Truster divided in al and amo•"' aetieable_. The Eestate had a
variety of assets in many forms including personal, real and intangible property. Mrs. Mumma and
LisaT e--e*eeuuieesr consulted with their attorneys and accountants and reviewed differing
scenarios before making an informed decision in the division and placement of the various assets
into the two Ttrusts. Mr. Hadley was the most credible witness regarding values. He testified that he
adjusted the values of all the assets prior to the distribution being made by Mrs. Mumma and Lisa
the E � cam_. The division was reasonable given the complexity of the estate and its various
assets. The parties presented the expert testimony of various attorneys who gave their opinions to
their interpretation of the Wwill's meaning and values placed on assets. Of all those testifying
relative to values Mr. Hadley's values were proper. He explained how each asset was reviewed from
a personal, hands on experience with those assets, He was a seasoned accountant and worked with
estates and quarrying businesses. He was the best person to evaluate the then values and his
determinations were proper. Ob4eetees--Barbara-"s experts admitted they had not reviewed the
historical data of the operations and had only reviewed limited information. They also stated they
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had looked at value of the assets at a point 4-5 years following the death of Mr. Mumma*he deeedent- and
worked backwards rather than looking at the value of the assets at the time of death and working forwards.
The question is did Mrs. Mumma "and Lisa* - take custody of the Eestate's assets and
administer those assets and preserve and protect the assets for the ultimate distribution to the proper parties.
Also did Mrs. Mumma and Lisathe— riees- exercise to the degree of judgment, skill and care and
diligence that a reasonably prudent person would exercise in the management of his or her own affairs (see,
Estate of Kurkowski. 487 Pa. 295,400 A.2d 357 (1979)). BarbaraT=he-AG j*#er_ has not met her burden of
proving Mrs. Mumma and Lisatne-exe�s_ did something imprudent or improper in the valuation of the
assets. In retrospect it is always easy to state a party might have completed a task in a differing manner, Here
Mrs. Mumma and Lisathe ��_ sought the advice and counsel of numerous professionals. Mr.
Hadley, the individual with the most independent knowledge and the person most familiar with the
businesses worked to calculate values. Many scenarios were reviewed and a determination of the distribution
of the assets between the Tirusts was made based on information available at the time. The assets Mrs.
Mumma and Lisathe-E ezutriee - placed in each Ttrust were properly valued to achieve the required funding
level of the Marital Trust with the remaining assets allocated to the Residual Trust of.,ppFa.,c.,,,,+„l„ equal
aloe at t—a + „ a +� +_ .. + to the trusts were ade Their actions were proper under the terms of Mn
aan
Mumma+'°„ �-'s lam-_Will and–Testamew- and were properly administered in accordance with their
duties as Executrices and Trustees.
The undersigned further notes that Mrs. Mumma and Lisathe-e*eeutrk,c - sought and obtained detailed
tax advice from numerous attorneys and accountants. The method they used to take advantage of the
changing tax laws in 1986-87 coupled with the decision of Mrs. Barbara-M r_ Mumma to defer the
payment of the estate taxes until the date of her passing, saved the estate a significant amount of taxes. No
competent evidence was presented that following the passing of Mrs. Mumma, the estate experienced any
unnecessary estate taxes. Therefore this objection should be overruled.
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44. Whether assets distributed to Barbara McKimmie Mumma as income distributions.
Including the Fulton Bank property, were undervalued thereby preiudicing the interests of other
beneficiaries. In order to resolve this objection it will be necessary to determine the method by
which various non-liquid assets were valued and the appropriateness of the valuations
Pursuant to the Seventh and Eighth Articles of the Iasi=Will and Testi ems_ the-e, r =
Mrs. Mumma and Lisa were required to pay all income to Mrs. Mumma and also five (5)
percent per year on the unfunded portion of the Marital Trust. By the end of 1987 this amount
totaled over $700,000.00 and the Eestate had no liquid assets to satisfy the debt to Mrs.
Mumma. After consultation with Mrs. Mumma and Lisa -Gstat,--'s advisors, attorneys and
accountant, it was decided Mrs. Mumma would be given the Fulton Bank property together
with other non-liquid assets all of which totaled the value of the debt owed Mrs. Mumma. The
calculations were made by Mr. Hadley relative to the distribution needed to satisfy this debt.
Following that Mrs. Mumma and Lisa the estate- made the transfer to Mrs. Mumma, as
beneficiary. This transfer in kind was proper and appropriate.
The question is did Mrs. Mumma and Lisathe exeeutr-iees= take custody of the estate's
assets and administer those assets and preserve and protect the assets for the ultimate distribution
to the proper parties. Also did the executrices exercise to the degree of judgment, skill and care
and diligence that a reasonably prudent person would exercise in the management of his or her
own affairs (see, Estate of Kurkowski. 487 Pa. 295, 400 A.2d 357 (1979)). BarbaraThe-9bjeeter=
has not met her burden of proving they did something imprudent or improper. She argued that
Mrs. Mumma and Lisathe—a— only selected the good assets for Mrs. Mumma to receive in
kind in lieu of cash. In retrospect it is easy to state a party might have completed a task in a
differing manner. No one can predict the actual ebb and flow of the market place. Here the
executrices sought the
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advice and counsel of numerous professionals. Mr, Hadley, the financial person most familiar with the
businesses worked to calculate value. The Fulton Bank building is a branch office in Lemoyne
Cumberland County which had an appraised value of much less than the money owed Mrs. Mumma,
Qbjester=Barbara- presented no appraisals from realtors relating to values of the property in
question or an appropriate appraisal of the interest in shares distributed to support her objection.
9bjeetor-Barbara-presented no competent evidence to support this objection.
The transfers in kind, in lieu of cash, were proper,
45. Whether assets distributed to Barbara McKimmie Mumma pursuant to her power to receive
an annual distribution of 5% of the value of the Marital Trust were undervalued thereby
prejudicing the interests of the other beneficiaries In order to resolve this objection it will be
necessary to determine the method by which various non-liauid assets were valued.
The allocation of the assets between the Mmarital and Rresiduary Ttrust were divided in-as
equal ap ropriately to satisf ty he requirements of the Will. The
Eestate had a variety of assets in deferring forms including personal, real and intangible property.
Mrs. Mumma and Lisa"r1he-e eeutr c�es- consulted with their attorneys and accountants and
reviewed differing scenarios before making an informed decision in the division and placement of
the various assets into the two Ttrusts. The division was reasonable given the complexity of the
Eestate and its various assets. As concluded above, the allocation was proper.
The Mtnaritai Ttrust established by the last-- Will °•4 testament of Robert M Mlaffiffln_
granted unto Mrs. Mummal2.1 ----the right to receive annually five (5) percent of the Mmarital
Ttrust. Therefore, the Executrice Barbara MeK. Mumma, as the widow and beneficiary of her late
husband's will and the
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Truust established thereunder was entitled to take her annual five percent in cash or in kind in
lieu of cash. Mrs. Mumma consulted with her attorneys, accountants and advisors, including
L isathe-ee exec 'We eo trustee- and determined it was simpler and more advantageous to
receive the five percent in kind in lieu of cash.
The five (5) percent withdraw in kind, in lieu of cash, was proper.
46. Whether discretionary distributions were made to Barbara McKimmie Mumma
from the Marital Trust despite her indication that she did not want distributions unless
required for her immediate expenses In order to resolve this objection, it will be
necessary to determine the advice and strategy, as well as the nature of the input from
Mrs. Mumma. that resulted in substantial distributions being made to Mrs. Mumma in
years when she did not have any need for funds and in circumstances which appeared to
run counter to her expressed family financial and tax strategy.
Withdrawn By OboetafBarbara-.
47. Whether estate assets including entities in which estate had an interest, were managed
efficiently. In order to resolve this objection it will be necessary to determine why the
estate adopted a strategy of allowing real estate assets of the estate and of Bobah to remain
uOproductive for extended periods of time and in some cases of not even paving the real
estate taxes due on properties thereby risking that they would be sold at tax sale and their
future value lost to the estate permanently.
Ob*4or-- Barbara M—. Mumm-a-produced no competent evidence to support this objection.
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The question, as previously stated, is did Mrs. Mumma and Lisathee ccutiivcs_ take custody of the
estate's assets and administer those assets and preserve and protect the assets for the ultimate distribution to
the proper parties. Also did Mrs. Mumma and Lisa*th-eNeo rim= exercise to the degree of judgment, skill
and care and diligence that a reasonably prudent person would exercise in the management of his or her own
affairs (see, Estate of Kurkowski. 487 Pa. 295,400 A.2d 357 (1979)). Barbara44e-0hjeeter= has not met her
burden of proving Mrs. Mumma and Lisa'_ did anything imprudent or improper in the
valuation of the assets or the preservation of the assets. Mrs. Mumma and LisaThe exeeutfiee = sought the
advice and counsel of numerous professionals. Mr. Hadley, the individual with the most independent
knowledge and the person most familiar with the businesses worked to calculate values.
Mrs. Mumma and LisaT4e4;3ta*e a the 1_11 1. have attempted to sell their and the
Estate/Residual Trust's interest in Bobali Corporation and had a buyer who was willing to pay 1.3 million
dollars for their interest. Barbara = had worked on this project, but in the end she did
not desire to upset Robert 111- 1-16—01.:°.,*e Bob n,r,....ma_and the negotiations ended. BarbaraObjeetor
Imo.,-�_and Robert they do not pay any of the real estate taxes for the
properties owned by Bobali Corporation even though they have individual interests in Bobali Corporation. In
their capacity as trustees, Mrs. Mumma and Lisathe trustees_ are not responsible to pay the taxes and
expenses of Bobali Corporation, but the expenses should be shared on a pro rata basis among the
shareholders, the Residual Ttrusts being one such shareholder. However, these parties can agree reach no
agreement.
During the course of the hearings Barbara Robert 11 Mrs. Mumma and Lisathe
argued regarding the payment of property tax on a small unproductive parcel of raw land. Mrs. Mumma and
LisaThe Estate- argued that the Objector's refused to pay their respective share of the tax, the objectors
argued that the taxes were to be paid by the estate. One or both of the objectors brought a legal action
regarding the payment of the tax. After being shown a plot plan of the land which was part of a storm
management plan
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for a development, and which was being taxed improperly, the undersigned called a lunch
recess. The undersigned left the hearing and traveled downstairs from the hearing room to the
office of the assessor for Cumberland County. The undersigned met with the chief assessor,
presented the plan and they reviewed the county aerial photos of the parcel and the assessed
value. Following the lunch break, the assessor came to the hearing room and announced the
value of the land for tax purposes was de minimus and the taxes would be reduced to under
$100.00 per annum.
ONeeta Barbara- presented no competent evidence to support this objection.
48. Whether the estate was wound up promptly and efficiently, without incurring
unnecessary legal and other expenses and prejudicing the interests of beneficiaries. In
order to resolve this objection it will be necessary to determine why the estate remained
open for over twentv-two years and why some assets have remained unsold and
unproductive for that period of time. It is evident that there have been various legal
proceedings related to the estate, but it is far from clear why the estate could not have
been wound up more quickly and without the attendant legal expense.
b --Barbara M—, M n+ma_ produced no competent evidence to show that Mrs.
Mumma and Lisae°ecutriees4vastees- have incurred any unreasonable expense including the
legal fees. Many of the legal fees associated with this estate appear to stem from what can only
be characterized as "recreational litigation" on the part of one or more of the .parties. The
Superior Court has called the parties "the litigious Mumma family." The question are: should a
reasonably prudent ex—e;tiexeeutrix-/trustee defend contentious litigation and initiate
litigation to protect assets of the
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estate? The answer is yes. It is not just Barbara and Robert Ilthe-Objeetefs_ and Mrs. Mumma and
Lisa lie e ,,etarie&qF ...°°- who are involved, but a fourth person, Linda-M atnaa=, one of the
beneficiaries.
The legal expenses in this matter are greater than most cases but were proper given the
circumstances. Had Mrs. Mumma and Lisgthe-l;.4ate- not initiated the action in Equity for a Declaratory
Judgment which determined Robert Via_ II had no right of first refusal, the quarrying operations
could not have been sold to CRHR, Likewise, when Robert "I. Mumm II without proper authority
transferred certain Florida real estate to himself, Mrs. Mumma and Lisat"Estate- properly brought an
action. The many, many actions initiated by Robert ,x--Mc nma,- II and the many appeals which
followed were properly managed as were the legal costs associated with those matters.
Qbjeoter—Barbara- produced no competent evidence to show that Mrs. Mumma and
Lisaexe - have paid unjustified counsel fees.
Mrs. Mumma and LisaT-he-estate_ bears the burden to show that their counsel fees were proper. Mrs.
Mumma and LisaThe estate_produced every detailed invoice for attorney fees and costs associated with
the administration of the Estate and the Trusts. Mrs. Mumma and Lisa44w-E4ate_ also presented
competent testimony from the attorneys representing the Eestate and the Trusts and from Mrs. Mumma
and Lisathe-ex ��Afustees-.
Attorneys employed by an Estate or Trust are entitled to reasonable and just compensation for the
services provided to the estate or trust. See U.S. National Bank in Johnston v. Campbell. 354 Pa. 583. 47
A.2d 647 (1946). The Pennsylvania Supreme Court has set forth a number of factors to consider in
making a determination of whether the fees are reasonable and just and they include:
a. amount of work performed,
b. character of services rendered,
C. difficulty of problems involved,
119
d. importance of the litigation,
e. amount of money or value of property in question,
f. degree of responsibility incurred,
g, whether the fund was created by the attorney,
h, professional skill and standing of the attorney in his profession,
i. results he was able to obtain,
k . ability of the client to pay a reasonable fee for the services rendered.
See, Estate of LaRocca. 431 Pa. 542,246 A.2d 337 (1968).
Where an estate requires additional legal services due to unusual complications and
circumstances, such fees are appropriate. See McClatchv v. Mecke. 492 Pa. 352, 424 A.2d 1227
(1981). The complications facing Mrs. Mumma and Lis he exeeutfieeS4 rust es- in this matter
were many including the constant legal actions by Robert II _
Having reviewed the statements and invoices for legal fees presented and having heard the
testimony of the attorney's involved or their firm's representatives who had familiarity with the
fees and matters associated with each matter; having heard the testimony of the parties; having
evaluated the difficultly and necessity of each legal matter, and the particular attorney or firm
selected to perform the task; together with the individual litigation, I conclude after considering
the factors established by the Pennsylvania Supreme Court that all attorney fees and costs
associated with the administration of this Eestate and the Ttrusts were reasonable.
49. Whether the Estate was administered in a manner that exacerbated friction amon fg amily
members therebv delaying the administration of the estate and increasing legal and other
expenses. In particular. Ms. Mumma is concerned that the approach adopted by counsel to the
120
on
estate-whatever the legal merit of any particular position on any particular issue—has led to
unnecessary friction among family members. It was the intent of the Testator that his assets be
utilized in a manner that would allow, to the greatest extent possible for all family members to
benefit jointly and engage in joint efforts to make the best and most roductive use of family
assets and to solidify rather than undermine family bonds. Particularly in ti by t of that intention,
means could have been pursued to resolve some or all of these matters by an amicable process
which would have lessened rather than increased tensions and ultimately would have benefited
all family members.
Objeeter—Barbara- produced no competent evidence to support her objection that the Mrs.
Mumma and Lisa's&ieeu!fiee94nis*°°°_actions exacerbated friction aniong the family members.
The evidence presented did not show that it is Mrs. Mumma and Lis eetArioes of tmsteee-
or their respective counsel or accountants who are the source of the friction in the Mumma
family. The evidence, conduct of the witnesses and parties clearly show that the
Mrs:Barbara MeK—. -Mumma and Lisa r organ—=and their
attorneys and accountant have acted appropriate during the administration of the Eestate and the
Ttrusts and also during the hearings. During the first year following Mr. Mumma's death it
appeared everything between the family members was copasetic. Then beginning in 1987 and
1988 around the time when Mrs. Mumma and Lisathe-estate_ would not sell Robert I19bjec-tof
Bob Mumma-the Eestate's quarrying operations for his value of between 5 and 7 million dollars,
that relations began to falter. Be that as it may, Robert IP°^" _ is the master of his fate
and Mrs. Mumma and Lis an._ execinflieesAfri°*~°°= have no control over his actions. 'Ib attempt
to lay the blame of familia problems at the feet of Mrs. Mumma and Lisathe—ex cia =-and
tr=ustees:is simply wrong.
121
The question is did Mrs. Mumma and Lisadi cn�s- take custody of the Eestate's
assets and administer those assets and preserve and protect the assets for the ultimate distribution to
the proper parties. Also did Mrs. Mumma and Lisa th-e)E exercise to the degree of
judgment, skill and care and diligence that a reasonably prudent person would exercise in the
management of his or her own affairs (see, Estate of Kurkowski. 487 Pa. 295, 400 A.2d 357 (1979)).
After review of all the evidence I conclude Mrs. Mumma and Lisathe— �^strut ems- acted
appropriately and Barbara T'= &-0*eetff= has not met her burden of proving they did something
imprudent or improper.
Additional Matters
50. What amount of auditor fee and costs, if any are due the previous auditor, Taylor Andrews,
Esquire.
I conclude and recommend Taylor Andrew's Esquire be paid $11,856.46 in accordance with a fee
scheduled submitted to this Honorable Court by Praecipe dated October 1,2008.
51. Whether Mrs. °z n bar,x-Me --Mumma's decisions regarding the handling of her personal estate is
relative to her role as executriceltrustee of the Estate and the Trust of b of htisband Robe -AC
Mumm -.
Following the passing of Mrs. Mummatheip-.iothef, Robert lI - and Bales
Barbara- a _argued that because Mrs. Mumma had favored Lisa tMorgarr=in her personal
estate this was evidence of Mrs. she-Mumma- and Lisa Morgan-=were not treating the beneficiaries
of the Estate o++ 110 ^
Robert 11 and BarbaraT4e-Ob*ters- attempted to present copies of Mrs. Mumma's will which
was probated in Florida as well as copies of Mrs. Mumma's inter vivos trust. Neither is relevant to
this audit. To whom Mrs. Mumma left her personal estate is of no concern to this audit. Having
witnessed the
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treatment shown Mrs. Mumma during the hearings, the undersigned is not surprised to learn the
late Mrs. Mumma may have favored one or more of her children over others when dividing her
estate.Mrs. Mumma's personal estate is irrelevant
There was no evidence presented to show the beneficiaries of the Ttrust were not treated
equally. To the contrary, Mrs. Mumma took no fees or commissions during her lifetime from
the Eestate or the Trusts. During her lifetime she was entitled to all the income from the -her
''• Eestate and the Trusrs but she did not receive it. Instead Mrs. Mumma insured
the-Lisa's- fees and commissions erher-„-o exeetitriee a,d trustee- first taken from the
income and then the balance provided to Mrs. Mumma. She testified she made this decision to
insure her children were treated equally.
Robert II and Barbara the O rs- argue that a scheme was hatched back in 1986-87 in
the selection of the assets which went into the two trusts so that Mrs. Mumma would be able to
amass a larger estate and then disinherit the Robert II and 9lsjeetersBarbara Robert II and
BarbaraThe 4) e - were unable to produce any evidence of such a claim other than
conjecture on their part. The evidence showed that during this time period and throughout the
handling of the Eestate and the Trusts neither Mrs. Mumma nor Lisa'fu�e—et
exeeutFic-eexecutrices- favored any of the residuary beneficiaries.
The purpose of Mr. Mumma 43e te;t--l-If-'s plan was that Mrs. Mumma would
receive the maximum benefit possible with the least tax liability during her lifetime and at her
passing if there were any remaining assets, the assets or their value would be distributed equally
between his four children. Robert 11 and Barbara' Pie Objeeters_ position is that Mr.
Mummathe-testater_'s plan should have been established to maximize the benefits they may
receive from the Eestate and the Trusts.
Mrs. Mumma and Lisa`he e Eeeu4ri esAf ^tens_performed their duties in an appropriate and
proper manner in spite of the problems within the family.
123
52. Whether the Estate, the Ttrusts or Robert II and Barbara the r'�tor-s_ should bear the costs
and fees associated with the Auditor's hearings, and if any apportionment among and between
the parties is fair, equitable and appropriate, how is it to be calculated.
Mrs. Mumma and LisaT"„state= haves argued that the time spent on the hearings on the
Objections was unnecessary based in a large part on the nature of the presentation of the
evidence by the Robert 11 and Barbara-t boet� -—. Mrs. Mumma and LisaTTw-Estate_ haves
proposed a sharing of the expenses as follows: Trusts : 212 32%, Mr. Mumma 11 57.39 % and
Babs Mumma 1.9.39%.
Barbarabs Mumma— was represented by counsel during the first few hearings, but later
continued on a pro se basis. Robert IJMf-, ,4wnma_proceeded on a pro se basis even though he
had his attorney and a paralegal with him on most occasions. During the hearings Robert IIM-r-.
Mumma- did act as though he was seeking discovery. He called many witnesses who were
adverse to his position and attempted to re-litigate every matter which had been determined by
this Honorable Court and other courts. He was obdurate and attempted to delay and prolong
hearings. His conduct was extremely unprofessional toward the Court, my position, the other
attorneys and the opposing parties. Most of that which he presented was irrelevant to the
proceedings. He called witness after witness and would continually ask to reach a relevant issue
but continually attempted to return to issues which had long been decided by this Honorable
Court and other courts. He repeatedly promised to present credible relevant evidence, but did
not meet any of his promises. I believe it would be right,just and appropriate to assess one half
of the costs of the audit to 8bjeeter-_Robert _II.
No portion of the cost of the audit should be assessed to Ob.tee i - Barbara-Murmia
53. Whether additional attorney fees should be awarded to the Estate and the Ttrusts.
124
I believe it only fair, right just and appropriate that the trust be awarded fifty percent (50%) of
ifs-their- attorney fees to be assessed from 9hjecter-=Robert M. Mumma -II and that a hearing
be scheduled for the determination of the same. He was obdurate and dilatory and equity
dictates that he bear the cost associated therewith.
Final Conclusion
125
All accounts of Mrs. Mumma and
surviving T—Fu tee_ should be accepted as filed and that Robert �",--: i-4::mna3-=II be assessed one
half the costs of the auditor together with one half the trust's attorney fees, accountant fees and
costs associated with the auditor hearings. Further that Lisa the surviving Trustet-:procced to
final distribution of assets among and between the beneficiaries.
Lisa h§ergan—=had previously petitioned Your Honor to permit her to solely begin the
process of distribution of the Estate's-Trust-'s Aassets to the residuary beneficiaries. For the
reasons detailed in my former interim report and the reasoning set forth therein, I would again
recommend, at this time, the petition be granted. Under the terms of Mr. o _ Mumma's
bast-- Will ^•�_ Lisa Mef ,has the clear authority to begin a plan of liquidation
and to thereafter distribute the—wsets among and " tween the four children in equal shares of
any and all the remaining assets in the Marital Trust and the Residuary Ttrust s'^s <€ter
t'" 'vcctrvz-tli° _;�,' •�• �-\ .7 H ti:,: lei. 'A .„.
W4an,i T,.�-I- star�..•cf ii i, n,r n,r -
��vcrczPr.—+vrmmaja-.
In addition Taylor Andrew, Esquire, the former auditor had submitted a bill which had not
been paid. Upon reviewing the time spent and the files prepared his fees and costs are
appropriate and should be paid and included as the cost of this audit and should be paid.
I further recommend that if your Honor agrees with my findings and conclusions, following
the time period for exceptions, your honor enter an Order overruling the Objections and
approving the accounts °^ "e-d str "�t; ; z,_. The transcripts of the hearings shall also
be delivered to the Clerk of the Orphans Court for your review.
126
I have attached a two recommended orders to accomplish the same.
August 5,2013 Respectfully submitted,
Joseph D. Buckley, Esquire, Auditor
Supreme Court ID# 38444
1237 Holly Pike
Carlisle, PA 17013
(717) 249-2448
JoeBLaw aol.com
127
I
IN RE: ESTATE OF ROBERT M. : IN THE COURT OF COMMON PLEAS OF
MUMMA, deceased CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-86-398
ORDER
AND NOW, this day of 2013, upon the recommendation of the
Auditor in this case it is hereby ORDERED that the Objections of Robert M. Mumma Il and the
Objections of Barbara M. Mumma to the following accounts are overruled:
A. The First and Interim Account for the Estate of Robert M. Mumma (April 12,
1986 through March 31, 1991).
B. The Second and Interim Account for the Estate of Robert M. Mumma (April 1,
1991 through March 31, 1996).
C. The Third and Interim Account for the Estate of Robert M. Mumma (April 1,
1996 through March 31,1999),
D. The Fourth and Final Account for the Estate of Robert M. Mumma(April 1,
1999 through September 30,2003).
E. The First and Interim Account for the Marital Trust established under the last
Will and Testament of Robert M. Mumma(November 19, 1986 through March 31, 1991).
F. The Second and Interim Account for the Marital Trust established under the last
Will and Testament of Robert M. Mumma (April 1, 1991 through March 31,1996).
G. The Third and Interim Account for the Marital Trust established under the last
Will and Testament of Robert M. Mumma (April 1, 1996 through March 31, 1999).
H. The Fourth and Interim Account for the Marital Trust established under the last
Will and Testament of Robert M. Mumma(April 1, 1999 through December 31, 2003).
128
L The Fifth and lnterim--FinW— Account find Pf�' 'k + ` " for the
Marital Trust established under the last Will and Testament of Robert M. Mumma (January 1,
2003 through July 17,2010).
J. The First and Interim Account for the Residual Trust established under the last Will
and Testament of Robert M. Mumma(November 24, 1986 through March 31, 1991).
K. The Second and Interim Account for the Residual Trust established under the last
Will and Testament of Robert M. Mumma(April 1, 1991 through March 31, 1996).
L. The Third and Interim Account for the Residual Trust established under the last
Will and Testament of Robert M. Mumma(April 1, 1996 through March 31,1999).
M. The Fourth and Interim Account for the Residual Trust established under the last Will
and Testament of Robert M. Mumma(April 1, 1999 through December 31,2003).
N. The Fifth and I itial-Interim- Account enend 11fo ., seA r'',istributioii of Assets: for the
Residual Trust established under the last Will and Testament of Robert M. Mumma (January 1,
2003 through July 17, 201.0).
O. Supplement to Account of the Residual Trust Under Will of Robert _M. Mumma
Deceased
It is further ORDERED that the aforementioned accounts of this estate are accepted and approved
as filed.
It is further ordered that Taylor Andrew's Esquire be paid $11,856.46 by the Estate and the trusts
the balance owing on his auditor fee and that amount shall be included in the calculation for audit
costs and fees to be apportioned.
It is further order that Objector Robert M. Mumma II be assessed an amount equal to one half the
fees and costs paid to the Auditors in this matter.
It is further Ordered that Objector Robert M. Mumma II reimburse the Estate one half its legalfees
and costs associated with the Auditor's hearings. The Estate shall within twenty days of this order
present its calculation to the Clerk's Office with copies to all parties. If any party objects to the
calculations and only the calculations, objections will be filed within ten (10)days. If no objection
1 IN
to the calculation is made an Order shall be entered in favor of the Estate, if the calculation is
opposed, then a hearing shall be scheduled by further order of the Court.
BY THE COURT
J. Wesley Oler, Jr., Senior Judge
Joseph D. Buckley, Esquire,
Auditor Clerk of Orphan's Court
No V. Otto, IIIV, Esquire
Brady Green, Esquire
Richard F. Rinaldo, Esquire
Robert M. Mumma, II
Linda Mumma Roth
130
I
IN RE: ES'T'ATE OF ROBERT M. IN THE COURT OF COMMON PLEAS OF
MUMMA, deceased CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO, 21-86-398
ORDER
AND NOW,this day of 2013,upon the recommendation ofthe
Auditor in this case it is hereby ordered that the request of Lisa M. Morgan, that she be
authorized to proceed with a plan of liquidation is hereby granted. Lisa M. Morgan is
authorized and directed to proceed with a plan of liquidation of the assets remaining in the trust
established under the Seventh Section and the Eighth Section of the Last Will and Testament of
Robert M. Mumma, and following receipt by this Court of its Order regarding the accounts
Previously filed to distribute then remaining assets among and between the named
beneficiaries: Robert M. Mumma II, Barbara M. Mumma, Linda Mumma, and Lisa M. Morgan
in equal shares without further order of this Court.
BY THE COURT
J. Wesley Oler,Jr., Senior Judge
Joseph.D. Buckley, Esquire, Auditor
Clerk of Orphan's Court
No V. Otto, IIIV, Esquire
Brady Green, Esquire
Richard F. Rinaldo, Esquire
Robert M. Mumma II
Linda Mumma Roth
131
APPENDIX B
TO
OBJECTIONS OF BARBARA MCK. MUMMA (DECEASED) AND
LISA M. MORGAN AS EXECUTRICES OF AND TRUSTEES UNDER
THE WILL OF ROBERT M. MUMMA TO REPORT OF AUDITOR
The following references are used in Appendix A:
Robert M. Mumma, Sr. "Mr. Mumma"
Will of Robert M. Mumma, Sr. the "Will"
Estate of Robert M. Mumma, Sr. the "Estate"
Trust Under Article VII of the Will the "Marital Trust"
Trust Under Article VIII of the Will the "Residuary Trust"
Marital Trust and Residuary Trusts the "Trusts"
Barbara McK. Mumma "Mrs. Mumma"
Robert M. Mumma, II "Robert II"
Barbara M. Mumma "Barbara"
Linda M. Mumma "Linda"
Lisa M. Morgan "Lisa"
Mumma Realty Associates I "MRA I"
Mumma Realty Associates II "MRA II"
George W. Hadley, Jr. "Mr. Hadley"
Karl Felmeden "Mr. Felmeden"
Thomas Hill "Mr. Hill"
William Boswell "Attorney Boswell"
Arthur L. Klein "Attorney Klein"
Joseph A. O'Connor, Jr. "Attorney O'Connor"
Morgan, Lewis & Bockius LLP "MLB"
CRH plc
David C. Cleaver "Attorney Cleaver"
Jonathan Crist "Attorney Crist"
Daniel Johnson "Attorney Johnson"
Robert May "Attorney May"
Joseph D.C. Wilson, III "Mr. Wilson"
The names of the following corporations owned by the Mumma family are not abbreviated or
shortened in Appendix A, in order to avoid any potential for confusion as to their meaning:
Bobali Corporation
D-E Distribution Corp.
Derry-Air, Inc.
Elco Concrete Products, Inc.
G-A-T Distribution Corp.
High-Spec, Inc.
Kim Company
Kim & Kin, Inc.
Lebanon Rock, Inc.
Middle Park, Inc.
Nine Ninety-Nine, Inc.
Pennsy Supply, Inc.
Pennsylvania Supply Company
Robert M. Mumma, Inc.
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy &
Faller,hereby certify that a copy of the foregoing Objections of Barbara McK. Mumma(Deceased)
and Lisa M. Morgan as Executrices of and Trustees Under the Will of Robert M.Mumma to Report
of Auditor was served this date by depositing same in the Post Office at Carlisle, PA, first class
mail, postage prepaid, addressed as follows:
Robert B. Eyre, Esquire
Foehl & Eyre, PC
27 East Front Street
Media, PA 19063
Richard F. Rinaldo, Esquire
Williams Coulson Johnson Lloyd Parker& Tedesco, LLC
One Gateway Center, 16th Floor
Pittsburgh, PA 15222
Ms. Linda M. Mumma
P.O. Box 30436
Bethesda, MD 20824
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
MARTSON LAW OFFICES
�ST
Tricia . Eckenr ad
Ten East High St eet
Carlisle, PA 17013
(717) 243-3341
Date: September 16, 2013
F:\FILESUients\5844 Mumma Estate\5844.19 Accounts and Distribution Trusts\5844.19.cos wpd