HomeMy WebLinkAbout09-19-13 Robert B. Eyre, Esquire Attorneys for Robert M. Mumma, II
I.D. No. 41990
Foehl & Eyre, P.C. � f.�� ��� ���
27 East Front Street � �' �� ���
C,,"7 -�.. ,1 F
Media, PA 19063 � � � �,��� �J �
,
610-566-5926 �' �; '��T� '^"�� `;
6 �,.�.. � Ca:J , ., _.�:I
��
�, f..3 , _',
,� w t .r
_ ,. ..,
.,-i: t�
�� ...
d�'"r � -v
�..".r ...,,
... ...;
� �:A»., �ti i
IN THE COURT OF COMMON PLEAS OF CUMBERLAND�,C(��JNTY� ;�; �-�
PENNSYLVANIA :=� �--.-� ���
In re: ESTATE OF ROBERT M. :
MUMMA,Deceased. : ORPHANS' COURT DIVISION
,
.
• No. 21-86-398
.
SUPPLEMENTAL AND CORRECTED OBJECTIONS OF ROBERT M.
MUMMA,II TO AUGUST 7,2013 REPORT
OF AUDITOR JOSEPH D. BUCKLEY, ESQUIRE
Robert M. Mumma, II, by and through his undersigned counsel, files the
following supplemental and corrected objectionsl to the August 7, 2013 Report of
Auditor Joseph D. Buckley, Esquire(the "Report"):
Introduction
1. The Report comes nearly 9 years after this Court first appointed an auditor
to audit accounts of the fiduciaries of above-captioned Estate and related Marital and
Residuary Trust.2
2. The first auditor—Taylor P. Andrews—produced no audit in almost four
years, before being removed and by Order entered September 19, 2008 (Docket No. 295)
1 The original version of these objections filed on September 16,2013,was incomplete and defective,due
in large part to a severe staff shortage in the office of the undersigned. In addition to renewing the prior
request for an extension of time for these objections,in paragraphs 11 to 17 below,the undersigned is
requesting the Court allow the filing of these supplemental and corrected objections to address the
deficiencies in the version filed two days earlier.
2 The initial Order appointing Taylor P.Andrews,Esquire auditor�ntered January 7,2005 (Docket No.
87)does not specify the nature
1
and appointing the present auditor, Joseph D. Buckley, Esquire (hereinafter, the
"Auditor").
3. Four more years passed, before the present Auditor issued the Report,
purporting to address objections of Robert M. Mumma II ("Bob" or "RMM II") and
Barbara M. ("Babs") Mumma to the initial and intervening (in all, fourteen) accounts
filed by the fiduciaries of the Estate and related Marital and Residuary Trusts.
4. The Report (at pp. 2-3) lists the fourteen accounts that were to be audited;
but never directly discusses,reviews or evaluates their contents.
5. The Report does not list or address the actual objections to the accounts
filed by RMM II and Babs Mumma, but instead reviews a list of"issues," (set forth on
pages 5-11 of the Report), forty-two of which are attributed to RMM II (Report at p.2),
seven of which are attributed to Babs Mumma (Id.), two of which were "added" by the
Auditor(Id. at p.4) and another two of which were "raised"by the Estate. (Id.)
6. The Report describes the Auditor's appointment as "to make findings of
fact and conclusions of law to..." these issues (Report at p.4), as opposed to addressing
the obj ections themselves and auditing the accounts.
7. Despite "nearly forty days of hearing" (Report at p.2), the Report does not
cite to transcripts for support of its findings, but appears to rely on the Auditor's
recollection of what transpired in these forty days, spread over two years, and concluded
over two years ago.
8. Two hundred and twenty-six (more if the subparts are included) of the
"Findings of Fact" do not rely on testimony and evidence presented to the Auditor,but on
2
excerpts of the decisions of other tribunals, in other proceedings, the relevance of which
to the accounts and objections at issue is not apparent. These include:
a. Findings of Fact Nos. 1 through 120, which purport to be excerpts of
facts "determined" by Judge Sheeley in a Cumberland County Court of
Common Pleas matter docketed at 66 Equity 1988 (the "Equity 66"
matter);
b. Findings of Fact Nos. 121 through 146, which purport to be "facts
together with subheadings found by Judge Sheeley"3 in a in a
Cumberland County Court of Common Pleas matter docketed at no. 99-
2765 Equity Term (the "99-2765 Equity"matter);
c. Findings of Fact Nos. 147 to 185, which purport to be "facts found by
Judge Sheeley following hearings held July 25-26, 1993 following a
request form preliminary injunction" filed by RMM in this Estate (the
"1993 Preliminary Injunction Matter");
d. Findings of Fact Nos. 186 to 226, which purport to be "facts together
with subheadings found by Judge Robert Matemsom" in a matter filed in
the Circuit Court of Florida for Martin County Florida and docket there at
No. 89-503 (the "High Spec"matter).
The Report sets forth no reasoned application of principles of res judicata or collateral
estoppel to determine whether and to what extent these prior decisions are relevant and
binding in the instant matter; and proffers as its reasons for reliance on these prior
decisions only that it was "prudent to take judicial notice to the relevant findings as they
3 It is believed that the referenced decision was by Judge Oler,not Judge Sheeley.
3
were made following hearings and trials when the information was fresh in the minds of
witnesses." (Report at p.4)
9. The extent of the Auditor's reference to prior decisions of other tribunals,
suggests that the Auditor was unduly influenced by these previous decisions and
predisposed by them to discredit the positions and evidence of RMM II on objections to
the accounts.
10. This predisposition, it is submitted, led to a Report that, as a whole as well
as in the specific respects discussed below, displays a lack of due consideration by the
Auditor of the evidence and issues presented to him, and of his core responsibilities to
audit the accounts and address the specific objections of RMM II and Babs Mumma to
those accounts.
Renewal of Motion for Extension of Time to File Obiections
11. RMM II, by his undersigned counsel, previously filed a Motion of Robert
M. Mumma, II For Extension Of Time To File Obj ections To August 7, 2013 Report Of
Auditor Joseph D. Buckley, Esquire ("Extension Motion") requesting 55 days—to
October 14, 2013—to file these objections.
12. The Court granted an extension of only 30 days.
13. The request for additional time was reasonable, particularly in relation to
the extensive delays in the production of the Report and the need of the undersigned
counsel, who was not involved in the proceedings before the Auditor, to become fully
acquainted with the record of not only these proceedings but the four additional pieces of
litigation the Auditor refers to in his Report.
4
14. The undersigned has striven to complete these objections within the time
allowed and the task has been made even more difficult due to the departure of two of the
three remaining attorneys in his office within the last month, leaving him to shoulder a
workload that has been simply crushing.
15. Allowing the requested extension through October 14, 2013 will not
significantly delay the administration of this Estate:
a. No actual distribution is proposed in the accounts or approved by the
Auditor as required by Orphans' Court Rule 8.3. Instead, this Report
merely authorizes the Trustees to proceed with a plan of liquidation
before distribution; and
b. That relief, which is objected to herein is already the subject of an appeal
pending before the Superior Court.4
16. RMM II and his counsel accordingly renew their Extension Motion herein,
: requesting the balance of the additional 28 days previously sought (through October 14,
2013)to further supplement and clarify the objections stated herein.
17. It is expected that further supplementation will consist primarily of
providing more specific citations to hearing transcripts and evidence in the record, which
should ultimately aid the Court and expedite the just resolution of these objections.
Ob i ections
Objection No. 1: Failure to consider evidence concerning the Estate of Walter M.
Mumma and its relationship to other evidence of shareholder agreements,bylaws
and other restrictions intended to protect the interests of RMM II and his siblings in
the Mumma family businesses:
4 This same relief was granted in this Court's Order of May 10,2013 (Docket No.714),and is the subject
of appeals of RMM II and Babs Mumma in the Superior Court at 1028 MDA 2013 and 1003 MDA 2013,
respectively.
5
18. RMM II offered documentary evidence and testimony concerning the
assets, administration and distributions of the Estate of his Grandfather, Walter M.
Mumma.
19. This evidence was relevant to at least two issues presented by RMM II's
objections to the accounts:
a. As background and corroboration of other evidence of the existence of
restrictions on the shares of Pennsylvania Supply Company of Harrisburg
("PSC") and its subsidiaries, intended to assure that the bulk of the assets
of these companies, including the quarries that accounted for such a large
portion their value, passed to Walter's grandchildren. Walter was the
father of Robert M. Mumma, Sr. ("RMM" or "Decedent"), the Decedent
in this Estate; and Walter's grandchildren—RMM II, Babs Mumma, Lisa
M. Morgan ("Lisa Morgan") and Linda Mumma ("Linda Mumma"}—are
also the children of RMM and the four residual beneficiaries under his
Will; and
b. As evidence of the intentions of the Decedent in this Estate, RMM, to
protect his children's interests in these same assets, including through the
limitation of the amount of the bequest to his wife, Barbara McKimmon
Mumma ("Kim Mumma") to the pecuniary trust in Article Seventh of the
Will (referred to as the "Marital Trust"), and the provision in both Article
Seventh and Article Eighth of the Will for the entire residuary to be held
for the benefit of his children (RMM II, Babs Mumma, Lisa Morgan and
6
Linda Mumma), to be distributed, upon Kims' Death, "as it is then
constituted...share and share alike..."
20. The evidence offered included, without limitation,the following:
a. The First and Final Account of Walter's Estate (Exhibit O l-72) showing
the assets to be probated under his Will, including of particular relevance
to this Estate, his interests two corporations of relevance to this Estate:
PSC and second corporation, Highspire Sand & Gravel, Ltd.
b. The Federal Estate Tax Return filed by Walter's Estate (Exhibit O 1-9).
c. Walter's Will (Exhibit O 1-71), providing in Article Second for equal
shares of the residue of his estate to be held Dauphin Deposit Trust
Company and the Decedent in this Estate, RMM, as trustees for each of
his grandchildren (Article Second, (a) and (b)).
d. An August 8, 1961 Order of the Dauphin County Orphans' Court (Exhibit
O 1-96, the "Dauphin County Order"), directing that the Silver Springs
Quarry, previously owned by Highspire Sand & Gravel, be held in trust
for the benefit of Walter's grandchildren.
21. These provisions in Walter's Estate were the origins of the plan—
implemented through various shareholder agreements, bylaw restrictions, key man
insurance policies and the Will of RMM—all of which were designed to protect the
interests of Walter's grandchildren in the Mumma family businesses and their assets.
22. The Silver Springs Quarry Property is the same property that the Estate
claims was owned by Pennsy Supply, Inc. and later by Nine Ninety-Nine, Inc. ("999"),
before the majority of the stock of 999 was transferred to the Marital Trust, and scooped
7
out of the Marital Trust by Kim Mumma, allowing her and her daughter, co-fiduciary
Lisa Morgan, to secure the disproportionate benefits of the sale of the Silver Springs
Quarry, as well as other quarry properties, intended by Walter and RMM to be preserved
for the benefit of his grandchildren.
23. These facts were discussed at length in the Post-Hearing Brief of RMM II
submitted to the Auditor (RMM II Post-Hearing Brief," Exhibit "A" hereto), the
arguments in which are nowhere addressed in the Auditor's Report.
24. Contrary to the findings and conclusions of the Auditor, there is
substantial evidence of the existence of shareholder agreements and bylaw restrictions
prohibiting the transfers of stock of Mumma family entities, such as Pennsy Supply Inc.,
Lebanon Rock, Middle Park, Inc. and PSC.
25. This evidence is found not only in the original intentions expressed in the
Will of Walter Mumma and the Dauphin County Order,but also in the following:
a. The Shareholder's Agreement between Kim Company and Jerry Simpson
(Exhibit O l-44) restricting the sale of shares of Pennsy Supply Inc.,
owner of the Silver Springs Quarry. Despite the termination agreement
referred to in the excerpts from the decision in the 99-2765 Equity matter
(see Finding of Fact Nos. 126-127 in Report at p.29) terminating the
Shareholder's Agreement as between the shareholders, that inter-
shareholder termination agreement does not evidence any intention, nor
(it is submitted) can it be given the effect of changing the bylaws of the
company offered in the hearings before the Auditor (Exhibit O l-27, the
"Pennsy Supply Inc. Bylaws"). Those Bylaws,by operation of section 33
8
(Pennsy Supply Inc. Bylaws at p.l l) incorporated the same restrictions as
part of the Bylaws of the company. This issue has never been addressed
by any court.
b. The testimony of RMM II concerning his personal knowledge of similar
restrictions on the transfer of shares in Pennsy Supply Inc., Lebanon
Rock, Middle Park, Inc. and HighSpec.
c. The billing time entry of Morgan Lewis Attorney Teplitz, referring to
shareholders agreements under review at the time of the PSC liquidation.
d. The terms of section 3(e) of both of the MRA Agreements that impose
restrictions on the transfer of the tenancy in common interests analogous
to the transfer restrictions that RMM II testified burdened shares of the
corporations whose assets were converted to MRA assets. The
appearance of these restrictions in the MRA Agreements, and their
explanation to RMM II and others at the time, suggest that they were
intended to continue protections already in place through corporate
shareholder agreements, bylaw restrictions and similar instruments
assuring that the interests of an owner could not be transferred without
providing the entity or its remaining owners the opportunity to redeem or
purchase the interests of the putative transferee.
e. The explanation of the purpose of the special language in section 2 of the
MRA I Agreement: to maintain Mumma family control of Union
Quarries, Inc. shares after the Kim Company liquidation, through block
9
ownership of the shares by the Estate. (See reference to findings in Equity
66 in Findings of Fact Nos. 22 through 28, Report pp.15-16)
26. These examples demonstrate a clear pattern—having its origins in the
intentions of Walter Mumma's Will—to maintain the closely held control of the Mumma
family companies and their assets for the primary benefit of Walter's grandchildren,
including through instruments restricting the transfer of interests in these assets without
providing the entity or its remaining owners the opportunity to redeem or purchase the
interests of the putative transferee.
27. RMM II testified that the relevant corporate records—including the stock
book, share certificates and shareholder agreements relating to PSC, Pennsy Supply,
Middle Park and other Mumma companies—were kept in the Safe Deposit Box owned
jointly by him and his father, and to the disappearance of those critical records after his
father's death—a fact also noted in the Auditor's Report.
28. He also sought, but was denied, access to personal records of his father,
believed to be held by his mother, Kim Mumma, that may contain relevant
documentation of these shareholder restrictions.
29. Given the absence of these records, the testimony of RMM II concerning
his personal knowledge of their existence and terms, and the other circumstantial
evidence of the same, should have been considered. Instead, it was ignored.
30. The same intention to protect and maintain the Mumma family businesses
for the benefit of Walter Mumma's grandchildren (Decedent RMM's children) is
expressed in the Will of Decedent RMM in this Estate, which (contrary to the
interpretation given by the Auditor) limits the beneficial interests of Decedent's wife,
10
Kim Mumma, as lifetime beneficiary of the Marital Trust, and prioritizes the beneficial
interests of his children as ultimate beneficiaries of both the Marital and Residuary Trust.
31. Of perhaps greatest relevance to the points here—of the consistent pattern
of imposing restrictions on the transfer of stock and other interests in the assets derived
from Walter Mumma's estate and intended for the benefit of his grandchildren, and the
intention of the Will of Decedent RMM to continue these restrictions—is Article
Thirteenth of the Will expressing this intention:
It is my desire that if expedient and possible, the
businesses which I have personally directed during my
lifetime and of which I have had an interest be continued
for the benefit of and under the management and control of
my immediate family.
(Will, Article Thirteenth; emphasis added)
32. This language is not precatory, as the "desire" is coupled with an
instruction that it be pursued "if expedient and possible..." The question—never
addressed by the Auditor—is whether it was "expedient and possible" for the co-
fiduciaries of the Estate and Trusts, Lisa Morgan and Kim Mumma, to maintain the
Mumma family businesses, in tact until the date of Kim's death, when the entire interests
of the Estate and Trusts were to be distributed, per Articles Seventh and Eighth, "as it is
then constituted...share and share alike..."
33. The language of Article 13 is strong indication that maintaining the
benefits and control of the Mumma family businesses derived from Walter's Estate for
RMM's "immediate family" was an important priority and purpose of the Will, and the
Will clearly identifies who were to be the ultimate beneficiaries of the continuation of
11
that status quo: RMM's children, and not Kim Mumma whose benefit was limited to the
lifetime benefits of a pecuniary trust.
34. The evidence presented to the Auditor shows that this intention of RMM's
Will to prioritize and protect the interests of his children, as residual beneficiaries, in the
Mumma family businesses, and pass them on to his children, in tact as far as was
"expedient and possible," was repeatedly and consistently violated by transactions—
evidenced in the accounts themselves—that preferred Kim Mumma, as beneficiary of the
Marital Trust, and Lisa Morgan, as beneficiary of Kim's own estate, over the residual
beneficiaries.
35. The failure to consider the evidence described above constitutes a lack of
due consideration of evidence by the Auditor and an error of law.
Objection No.2: Failure to audit accounts and objections:
36. The Auditor's responsibility was to audit the accounts and objections
placed before him, and confirm or rej ect the accounts and a specific statement of
proposed distribution. 20 Pa.C.S.A. § 3514; Orphans' Court Rule 8.3.
37. There is little if any indication in the Report that the Auditor actually
reviewed the accounts to satisfy himself that they were complete, accurate and proper.
3 8. Likewise, there is little if any indication in the Report that the Auditor
addressed specific objections to the accounts, as opposed to the issues he framed for
resolution.
39. The Auditor's recommendation that Lisa Morgan, as Trustee, be
authorized to proceed with a "plan of liquidation" does not satisfy the requirement of
confirmation of a specific distribution.
12
40. A prime example of the lack of attention to the specifics of the objections
and the auditing of the accounts, is in the failure of the auditor to address the objections
to specific and material fiduciary accounting principles set forth in detail in, for example,
Objections 2, 7, 8 and 9 of the May 27, 2004 Objections of RMM II, discussed further in
RMM II's Post-Hearing Brief (Exhibit "A" hereto) and supported by the detailed and
credible testimony and reports of Jonathan Crist and Joseph Wilson. (See Attorney Crist
Report, Exhibit O 1-1, also attached hereto as Exhibit "B", and testimony at 4/21/09
Transcript, pp.150 to 234; and Joseph Wilson testimony at 10/26/09 Transcript at pp.
2455 to 2631)
41. The failure of the Auditor to so audit the accounts and objections
constitutes a lack of due consideration of evidence by the Auditor and an error of law.
Objection No. 3: Right to jury trial concerning Decedent's alleged ownership of
certain assets:
42. RMM II filed Objections to the Inventory of the Decedent's Estate,
including to the claimed ownership of 700 shares of PSC stock by Decedent as of the date
of his death.
43. RMM II has also repeatedly objected to the Estate's claim of ownership of
those shares.
44. RMM II has requested a jury trial concerning the disputed claim of the
estate to ownership of the PSC shares.
45. The Estate bears the burden of proof of ownership of these shares. In re
Donsavage's Estate, 420 Pa. 587, 589, 218 A.2d 112, 116 (1966)
46. The Estate has never produced share certificates or a stock ledger for PSC,
and on that basis alone should be deemed to have failed to satisfy its burden of proof of
13
ownership of the shares. Commonwealth ex rel. Eberhardt v. Dalzell, 152 Pa. 217, 25 A.
535 (1893) (certificates and the stock books are the prima facie evidence of ownership).
47. There is at least a substantial issue of fact as to whether the estate is the
rightful owner of the 700 shares of PSC stock listed on the Estate Inventory.
48. The existence of a substantial issue of fact concerning ownership of the
PSC shares is further reinforced by the circumstances described above, corroborating the
existence of restrictions on these PSC shares, requiring that they first be offered back to
PSC for redemption before transfer to third parties. (See Objection No. 1)
49. Based on the foregoing, RMM II is entitled to a jury trial on the issue of
whether the Estate's claim to ownership of the PSC shares is valid. 20 Pa.C.S.A. §
777(a).
50. For similar reasons, RMM II is entitled to a jury trial on his challenges to
the Estate's claim to ownership of shares of HighSpec and Lebanon Rock.
51. Accordingly, any findings of fact or conclusions of law in the Report that
are premised on the Estate's alleged ownership of these assets is objected to as violating
RMM II's right to a jury trial on these issues.
Objection No.4: Improper reliance on excerpts of decisions of other tribunals:
52. The Auditor's reliance on the findings and conclusions of other tribunals,
described above, was not supported by any reasoned application of principles of res
judicata or collateral estoppel.
53. In order to find RMM II's objections barred by principles of res judicata,
or claim preclusion, the Auditor was required to find that the prior actions and RMM II's
objections to the accounts "share an identity of(1) the things sued on; (2) cause of action;
14
(3) persons and parties to the action; and (4) quality or capacity of the parties being
sued." Gregory v. Chehi, 843 F.2d 11 l, 116 (3d Cir. 1988).
54. In order to find RMM II's objections barred by collateral estoppel, the
Auditor was required to find that "(1) the issue sought to be precluded [is] the same as
that involved in the prior action; (2) that issue [was] actually litigated; (3) it [was]
determined by a final and valid judgment; and (4) the determination [was] essential to the
prior judgment." Burlington N. R.R. Co. v. Hyundai Merch. Marine Co., Ltd. 63 F.3d
1227, 1231-32 (3d. Cir. 1995).
55. The Auditor did not examine the issues and evidence offered by RMM II
in support of his objections to these accounts to determine if these principles applied and
it is submitted that they do not.
56. Among other relevant issues, the Auditor failed to address the following:
a. Whether the burdens of proof in these proceedings were different and
which party bore them;
b. Whether the parties present before these tribunals were identical and
appearing in the same capacity;
c. The extent to which the excerpts from these decisions were actual factual
findings and necessary to the judgment of the court, or mere recitations of
testimony, procedural history or background neither "determined" nor
necessary to the judgment;
d. The specific nature of the claims and causes of actions adjudicated;
e. Whether the adjudication was a final judgment on the merits or a
preliminary ruling—such as appears to be the case with respect to the
15
preliminary injunction hearing in the excerpts referred to in Findings of
Fact Nos. 147-185 (Report pp.31-36)
f. The extent to which these excerpts do not represent the actual judgment
or determination of the court but mere descriptions of a judgment
determination found elsewhere in the record, and therefore judicial
hearsay.
57. The failure of the Auditor to evaluate these application of these principles
constitutes a lack of due consideration of evidence by the Auditor and an error of law;
and the excerpts of these prior decisions in Findings of Fact Nos. 1 through 226, should
accordingly be disregarded.
Objection No. 5: To fndings and conclusions concerning Estate's ownership of
PSC:
58. RMM II objects to findings of fact that the Estate owned the stock of PSC,
on the grounds that:
a. As set forth above, the estate failed to satisfy its burden of proof of such
ownership (see Objection No. 3, above);
b. As set forth above, there is substantial evidence of the existence of
restrictions on the shares of PSC that required they be offered back to
PSC for redemption (see Objection No. 1, above); and
c. There is in any event a substantial issue of fact concerning the estate's
claim to ownership of these shares, entitling RMM II to a jury trial on
such ownership. (See Objection No. 3, above)
16
59. Similar objections to the Estate's ownership of shares of HighSpec and
Lebanon Rock have also been made, and RMM II has demanded a jury trial with respect
to those objections as well.
60. This objection is asserted as to, without limitation, the Finding of Fact No.
3 and all other findings and conclusions premised on the Estate's ownership of PSC,
HighSpec and Lebanon Rock shares.
Objection No. 6: Miscellaneous objections to fmdings of fact:
61. The following findings of fact confuse the separate identities of PSC,
Pennsy Supply, Inc. and Pennsy Supply Inc. by use of the name "Pennsy Supply"to refer
any or all of them: Finding of Fact Nos. 3 a) through d) and e)and 52, 53, 54, 81, 82-84,
99, 105, 109, 118, 158-167, 324.
62. In addition to the general objection to the reliance on the findings of prior
tribunals set forth above in Objection No. 4, RMM II objects to the following specific
"findings"excerpted from these prior decisions:
a. The following findings from Equity 66 are obj ected to as unsupported by
the evidence provided to the Auditor: 3, 8, 10, 12, 13, 15, 16, 17, 19, 20,
21, 22, 27, 28, 29, 31, 33, 37, 38, 39, 40, 41, 42, 43, 52, 54, 57, 62, 84,
116.
b. The auditor adopted findings of fact from Equity NO. 99-2765,
mistakenly referring to these as finding by Judge Sheeley. The case was
in front of Judge Oler. This further evidences the lack of due
consideration of the evidence by the Auditor.
17
c. New evidence in Exhibit O 1-O l from the records of Pennsy Supply, Inc.
and the PA Department of Environmental Protection, show that from
1981 to 1993 there existed simultaneously two Pennsy Supply companies
(entity #s 120660 and 740666). The document cites a mistake was made
and the quarry permits were issued to the wrong company (not the one
CRH bought). This and other newly discovered evidence produced at the
hearings before the Auditor refute the following "findings": 123, 131,
132, 133, 134, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145.
d. The auditor adopts findings of fact from Orphans court No. 21- 86-398,
Judge Sheeley. These findings are not supported by the evidence
presented to the Auditor that includes the Account of Walter M.
Mumma's Estate and Orders from the Dauphin County Court, discussed
above,regarding ownership of the Silver Springs Quarry.
e. Testimony of David Landry refutes finding 158.
f. The following "findings" of fact are obj ected to as contrary to evidence
presented to the Auditor: 188, 210, 212, 218, 232, 235, 240, 254, 288,
270, 279,282, 292,293, 294, 295, 303, 306, 307, 310, 313, 316, 319, 320,
321, 322, 324, 326, 327, 333, 334, 353, 355, 358, 359, 364, 365, 369,
370, 372, 373, 393, 399, 424, 427, 435, 465, 466.
Objection No. 6: Lack of Access to Bank Statements and other information needed
to understand and verify the accounts:
63. This Court, on advice of the auditor issued an order denying the objectors
request for Bank statements, checkbooks, and supporting information documenting the
underlying transactions.
18
64. The lack of this information prevented determination of the cash flow. It
is not possible to determine what funds were borrowed, paid, from what sources and to
whom, how much money was on hand and available. Since there are many back and
forth transfers from Pennsylvania Supply Company, Kim Co. and Nine Ninety Nine it
appears that the Estate was originally funded with funds from sales of assets of these
corporations that were not approved by the corporation.
Objection No. 7: Lack of subject matter jurisdiction to approve transfers and
dispositions of property belonging to others:
65. There are at least six sales of real estate where the Estate fiduciaries acted
on behalf of corporations in which the Estate or Trusts merely own or claim to own an
interest, and on information and belief, numerous other transactions disposing of assets of
corporations and other entities not owned by the Estate or Trusts.
66. The Auditor, and this Court, lack subject matter jurisdiction to approve or
disapprove of such non-Estate transactions and RMM II continues to object to any
approval or authorization of same through the adjudication of these accounts.
Objection No. 8: To Finding of Fact No. 393:
67. Finding of Fact No. 393 states that:
[Attorney Crist] opined that Attorney Clever's opinion
relative to the distribution of assets and that the Executrices
interpretation of the seventh paragraph of decedents will
was proper.
(Report at p.69)
68. The Auditor does not cite the portion of Attorney Crist's testimony in
which this opinion is expressed, and this Objector can find no such opinion in either the
testimony or the report.
19
69. It is believed that this Finding of Fact is an inaccurate recollection or
paraphrase of Attorney Crist's remark that he had made a particular mistake in his report,
but not otherwise endorsing or agreeing with the opinion of Attorney Clever.
Objection No. 9: To the Auditor's interpretation of the Will to express the intention
of RMM to provide the "maximum bene�t" to his wife,Kim Mumma:
70. The Auditor interpreted the Will to embody Decedent's intention that
maximizing the benefits to Kim Mumma was the primary purpose of the trust provisions
of the Will, stating(for example):
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 his wife, Barbara McK Mumma, during her
lifetime.
and:
No expert is needed to show that Mr. Mumma wanted that
the maximum benefit be given to his wife.
(Report at p.83; emphasis added)
71. The intentions attributed to RMM in these statements of the Auditor are
not to be found in the express terms of the Will which, as the Auditor correctly notes, is
not only the starting point for interpretation, but the ending point unless an ambiguity is
found. (Report at p.82)
72. Contrary to the Auditor's interpretation, the "four corners" of the Will
reveal an unambiguous intention to limit benefits to Decedent's wife, Kim Mumma, to
specified distributions from a standard formula pecuniary trust (the Marital Trust) and
receipt the income of the Residuary Trust, during her lifetime, with all the rest to be
preserved for the benefit of RMM's children, as residual beneficiaries of both Trusts. �
20
73. The first limitation on the benefits to Kim Mumma is expressed in the
formula prescribed in Article Seventh of the Will for the computation of the amount of
the bequest to the Marital Trust. The amount of that bequest is limited to "fifty (50%)
percent of [RMM's] gross estate as finally determined for Federal Estate Tax
purposes..." with the added limitation that "the values and amounts as finally
determined for Federal Estate Tax purposes shall control." (Will, Article Seventh, at
p.2; emphasis added)
74. That this provision acts as a limitation on the benefits afforded under the
. Marital Trust is demonstrated by the facts of this case where, as discussed below (see
Objection No. 10), the values as finally determined for Estate Tax Purposes are lower
than the fair market value of the assets at time of distribution: the pecuniary trust formula
in Article Seventh limits the amount of the bequest to 50% of the amount reported and
accepted by the IRS, even though that number may be (and often is, due to the desire to
minimize taxes) lower than 50% of the fair market value of the same assets.
75. A related, limiting effect of this pecuniary trust formula is that the gain or
appreciation of value of the assets during the administration of the Estate and Trusts,
inures to the benefit of the residual beneficiaries. See Althouse Estate, 404 Pa. 412, 172
; A.2d 146 (1961)
76. This is not the only indication in the Will of the intention to limit Kim
Mumma's benefits in favor of the interests of residual beneficiaries:
. a. As discussed below (see Objection No. 11), Article Seventh, further
limits the amount of the bequest to the Marital Trust by terms requiring
that the value of assets she received from RMM outside the probate estate
21
be taken into account in the computation of the amount of the bequest—
in this case, requiring a reduction of$861,018 from the bequest.
b. Article Seventh takes this limited amount and gives it to the Trustees—
not to Kim Mumma outright—to "hold, manage, invest and reinvest the
same..." The Trustees do not hold that property solely for her benefit,
but for the purpose of making limited distributions to her, during her
lifetime,in three categories set forth in Article Seventh:
i. the income from the Marital Trust assets (as well as the Residuary
Trust assets), subject to the further limitations in Article Twelfth
concerning what is and is not to be accounted for as income;
ii. annual distributions of principal in an amount not to exceed 5% of
the principal of the Trust; and
iii. additional discretionary distributions of principal but only...
to the extent 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...
and...
taking into account, however, my wife's
income for other sources... 5
c. Article Seventh itself identifies the ultimate beneficiaries of the Marital
Trust as the children of RMM—the residual beneficiaries; who, upon
Kim Mumma's death, are to receive the Trust principal, "as it is then
constituted...share and share alike..." (Will at p.3)
5 The last category,a"limited invasion right of trust principal"(Will at p.3)can be authorized only by a
Trustee other than Kim Mumma,n effect vesting this discretionary power in a residual beneficiary,Lisa
Morgan.
22
d. The provisions of Article Thirteenth, as noted previously (see Objection
No. 1, above) further instruct the Trustees to maintain the Mumma family
businesses, and their control and management by the immediate family,
so far as"expedient and possible..." (Will at p.9)
77. Accordingly, and contrary to the above-referenced statements of the
Auditor, it is submitted that the predominant intention of the Will as a whole, as well as
the specific provisions of the Trust, is to provide a limited, lifetime benefit to Decedents
wife, Kim Mumma, and prioritize the preservation of the assets—and particularly the
management and control of the Mumma family businesses—for his children, the residual
beneficiaries, who were to receive under Article Eighth, "All the rest..." upon Kim
Mumma's death, "as it is then constituted...share and share alike..."
78. The Auditor's contrary interpretation of the Will—to be intended
primarily to maximize the benefits to Kim Mumma—clearly influenced his application of
the Will to the issues before him. The result was that every issue was decided in favor of
the actions of Kim Mumma (and Lisa Morgan) and her professional advisors; including,
most notably, the unnecessary distribution of large quantities of 999 stock to the Marital
Trust and Kim, leading to the sale of the heart and soul of the family businesses—the
quarry properties—to CRH. The Auditor's approval of such transactions, like his
interpretation of the Will, was contrary to the intentions of the Will to preserve these
assets as far as expedient and possible, to be passed to the residual beneficiaries.
Objection No. 10: To Conclusion No. 1 and issue of valuation of the assets of the
Estate:
79. The Auditor rejects the objections of both RMM II and Babs Mumma that
the Estate was grossly undervalued. (Conclusions Nos. 1 and 43, Report pp.80 and 108)
23
80. In addressing RMM II's objection,the Auditor erroneously states:
The evidence on which [RMM II] based his position was
that the quarrying operations sold for more than three times
the date of death [sic] more than five years following the
establishment of the Estate.
(Report at p.80)
81. The Auditor cites no evidence, nor is there any finding, supporting this
articulation of RMM II's position on the evidence of value of the quarrying operations.
82. To the contrary, the evidence in the record is overwhelming that as early
as September 1988, Lisa Morgan, Kim Mumma and their advisors were aware of the
CRH offer(Exhibit O 1-42) supporting a value in excess of$60,000,000.
83. This is not just the position of RMM II,but the position of Babs Mumma's
expert, Wilson, who concluded the relevant assets were undervalued by$20-$25 million.
84. Other than declaring Hadley "credible"—and without explaining why he
is more or less credible than Wilson or RMM II on this issue—the Auditor gives no
explanation for his conclusion that the values relied upon by the estate were fair and
reasonable, except to note that the value he used ($8,648,168.50) was the amount
accepted by the IRS in the Decedent's Federal Estate Tax Return.
85. The Auditor's reliance on the amount reported in the Federal Estate Tax
Return for valuation of the assets appears to be based on the language of Article Seventh
of the Will, prescribing the use of that value as binding for purposes of computation of
the amount of the bequest to the Marital Trust.
86. This, it is submitted, is error: While Article Seventh of the Will does
mandate the use of the value listed and accepted by the IRS in the Federal Estate Tax
24
Return for computation of the amount of the bequest to the Marital Trust,6 nowhere does
the Will suggest that this number is also binding for the purposes of valuing the assets
used to satisfy a bequest in that amount.
87. For purposes of valuing the assets contributed to the Martial Trust, the
Estate fiduciaries were required to use fair market value. This, it is submitted, is the
credible opinion of both Crist and Wilson both of whom have more extensive
credentials and experience that Hadley concerning the issue of what value is to be used
for this purpose.
88. As credibly explained by Wilson and RMM II, Hadley's valuation of the
quarry properties was flawed in that he failed to value the gist of the thing: the mineral
; rights in the ground of the quarries.
89. The value stated in the Estate Tax Return was to be used for the purposes
of computing the amount of the bequest to the Marital Trust; but it was error for the
Estate to use the same valuations for purposes of determining the fair market value of
the assets to be contributed to satisfy that bequest, as it grossly undervalued the actual
value of assets being contributed to the Marital Trust, thus overfunding the Trust by, as
Wilson opined, $20-$25 million.
90. The overfunding of the Marital Trust, as explained by Crist and Wilson,
necessarily led to excessive distributions of principal to Kim Mumma, as she was
receiving 5 percent of a larger piece of the pie than she was supposed to.
91. The methodology of Hadley in determining how to fund the bequest to the
Marital Trust also violated the express provision of Article Eighth of the Will,because he
6 The last sentence of the first paragraph of Article Seventh of the Will clearly expresses that the amount in
the Estate Tax Return is to be used"In computing the amount of this bequest..."
25
apparently interpreted the language of Article Seventh—providing for a bequest in the
amount of 50% of the gross estate, to mean the assets of the Estate were to be divided
50/50 between the two Trusts. (See, e.g., Findings of Fact No. 353)
92. Article Eighth, however, does not limit the bequest to the Residuary Trust
to 50% of the Estate, and the Will does not provide for equality of bequests between the
two Trusts.
93. To the contrary, Article Eighth requires that the Residuary Trust receive
"All the rest, residue and remainder of my property..." after the bequest to the Marital
Trust is satisfied; and the bequest to the Marital Trust was limited by the formula in
Article Seventh, to a bequest of 50% of the amount used and accepted by the IRS in the
Estate Tax Return.
94. In this case, it is clear that because the amount used in the Estate Tax
Return was below the fair market value of the assets, the Residuary Trust should have
received more than 50% of the assets, at fair value.
95. This is consistent with the interpretation of the 50% formula Article
Seventh as a limitat�'on on the bequest, an interpretation supported by Crist and Wilson
and by the circumstances set forth in Objection No. 1, above.
96. The "50/50" split apparently relied upon by Hadley and approved by the
Auditor, violated the express terms of both Article Seventh and Article Eighth,
overfunding the Marital Trust and underfunding the Residuary Trust.
Objection No. 11: To Conclusion No. 2 and issue of disproportionate valuation of
assets:
97. It automatically follows from the previous objection that the co-
Fiduciaries, Lisa Morgan and Kim Mumma, and their professionals, disproportionately
26
allocated assets between the two Trusts when they used the below market value of the
estate Tax Return to fund the Marital Trust, and split the estate 50/50.
98. Separate and apart from this misallocation, however, the testimony and
reports of Crist and Wilson both credibly explain that the co-Fiduciaries and their
professionals failed to deduct the value attributed to assets passing outside the Estate—
shown on Schedule M of the Estate Tax Return to be $861,018—from the total gross
estate used to compute the amount of the bequest to the Marital Trust.
99. The Auditor rej ects this deduction based on his understanding of the
changes to the tax laws in 1981. (Report at p.84)
100. The Auditor's reliance on these parol circumstances is improper given the
unambiguous language of Article Seventh that the computation of the amount of the
gross estate was to be done "taking into account and including therein..." the amounts
passing from RMM to Kim Mumma outside the probate estate.
101. The result of "taking into account and including therein..." these non-
probate receipts in the computation is to reduce the amount to be included from the
probate assets in the Estate for computation of the bequest.
102. This same interpretation was supported by the opinions of Crist and
Wilson. (See, e.g., Part I of Crist Report, Exhibit Ol-1, also attached hereto as Exhibit
"B"; and testimony at 4121/09 Transcript, pp.150 to 234; and Joseph Wilson testimony at
10/26/09 Transcript at pp. 2455 to 2631)
103. Any doubt about the interpretation of the Will in this regard is mooted by
the express election by the Estate, on page 3, line 15 of the Estate Tax Return, not to have
the 1981 tax law amendments apply.
27
Objection No. 12: To Conclusion No. 3 and issue of unnecessary capital gains,
fiduciary income taxes and inheritance taxes:
104. The Auditor summarily rej ects obj ections that the co-Fiduciaries and their
professionals caused the Estate to incur unnecessary capital gains, fiduciary income taxes
and inheritance taxes on the basis that "he produced no credible evidence to support this
objection." (Report at p.86)
105. To the contrary, factual and legal support for these objections was
provided in the testimony of experts Crist and Wilson, as well as in RMM II's Post
Hearing Brief(Exhibit"A"hereto).
106. The Auditor failed to address the substance of these expert opinions and
factual and legal arguments, constituting a lack of due consideration by the Auditor.
Objection No. 13: To Conclusion No.4 and improper in-kind distributions for the
benefit of Kim Mumma and Lisa Morgan:
107. The Auditor summarily rejects objections that the co-Fiduciaries and their
professionals made improper in-kind distributions of stock, and selectively distributed
stock, to Kim Mumma, in lieu of cash distributions. The Auditor states that "RMM II
provided no legal authority to support his objection." (Report at p.86)
108. To the contrary, factual and legal support for these objections was
provided in the testimony of experts Crist and Wilson, as well as in RMM II's Post
Hearing Brief(Exhibit"A"hereto)
109. The Auditor failed to address the substance of these expert opinions and
; factual and legal arguments, constituting a lack of due consideration by the Auditor.
110. Without limitation of the other details provided in the above referenced
testimony and Post Hearing Brief, it is emphasized here that:
28
a. The distributions of 999 and Hummelstown Quarries stock occurred
without sufficient regard for other options for funding the distributions,
such as distribution of available cash or borrowing against Trust assets to
make such cash distributions.
b. It is submitted that the specific provisions of the Will—including, in
particular, the terms of Article Seventh and its direction to preserve the
existing assets and control of the Mumma family companies as far as
"expedient and possible..."—required the co-Fiduciaries to exhaust other
options for distributions first, before resorting to in-kind distributions of
stock that so fundamentally altered the existing constitution, management
and control of the Mumma family businesses.
c. The foregoing, as well as the fiduciary duties of good faith and loyalty,�
imposed an affirmative burden on the co-Fiduciaries, Lisa Morgan and
Kim Mumma, to demonstrate that other options for making distributions
to Kim Mumma were not available and that their selection of these
particular assets for distribution was in good faith and fair to the residuary
beneficiaries.
d. Not only have the co-Fiduciaries failed to bear this burden, but the
credible evidence supports the contrary conclusion that these assets were
selected for distribution in order to further the plan of the co-Fiduciaries
to transfer control of these corporations and the quarry assets they
claimed, to Kim Mumma, and to sell the assets to CRH for the primary
�In re Noonan's Estate,361 Pa.26,31,63 A.2d 80,83 (1949)
29
benefit of Kim Mumma and Lisa Morgan, as trustee and beneficiary of
Kim Morgan's own trust.
e. These assets were, as set forth above, grossly undervalued, meaning the
in-kind distributions themselves, when properly valued at fair market
value, exceeded the allowed amount of distributions.
Objection No. 14: To Conclusion No. 5 and improper in-kind distributions for the
benefit of Kim Mumma and Lisa Morgan:
11 l. The Auditor summarily rejects objections that the co-Fiduciaries and their
professionals improperly accounted for stock distributions to Kim Mumma, stating only
that they "properly accounted for any and all stock distributions..." and adding that their
accountant, Hadley, "would calculate the then stock owned by the estate and transfer an
amount equal to five percent to Mrs. Mumma." (Report at p.86; emphasis added)
112. This conclusion is flawed on multiple levels, including:
a. The annual principal distribution under Article Seventh was to be based
on 5% of the principal amount of the Marital Trust, not the Estate. A
distribution based on 5% of the amount in the Estate would clearly violate
the terms of the Will.
b. The reference to Hadley's role in the calculation of the amount to be
distributed reinforces the objection that these distributions were based on
his grossly understated values of the stock used for Estate Tax purposes,
and resulted in distributions that, at fair market value, exceeded the
allowed amount.
c. The conclusion ignores the specific examples of improper accounting of
stock distributions testified to by experts Crist and Wilson. (See, e.g.,
30
part III..B. of Crist Report, pp.9-10; Exhibit "B" hereto) As set forth
there, the accounting for receipt and distribution of 999 stock violates the
terms of Article Twelfth and applicable fiduciary accounting standards by
characterizing stock dividends as income and reinforces the inference that
these distributions were part of an intent to circumvent the 5% limitation
on distributions of principal.
Objection No. 15: To Conclusion No. 6 regarding improper distribution and
accounting of income form the Estate to Kim Mumma:
113. The Auditor summarily rejects objections that the co-Fiduciaries and their
professionals improperly distributed and accounted for income from the Estate to Kim
Mumma, asserting that "all income from both trusts was to inure to the benefit of the
decedent's widow." (Report at p.87; emphasis added)
114. This conclusion misses the entire point of the objection: that the income
referred to came from the Estate, and not the Trusts.
115. The particular distributions at issue are identified in the Crist Report (Part
II at pp.7-8), and include seven specific distributions shown on the Estate accounts, as
being paid directly for the Estate to Kim Mumma.
116. As opined by Crist, under In re Estate of Fike, 351 Pa. Super. 380, 506
A.2d 398 (1986), income of the estate should be added to the principal of the Residuary
Trust.
117. As also pointed out by Crist, while these improper distributions form the
Estate were made, the Marital Trust retained some $2 million in earned income, leaving
no reasonable justification for the distributions by the Estate.
31
Objection No. 16: To Conclusion No. 8 regarding failure to allocate gains and
appreciation of assets to the Residuary Trust:
118. The Auditor summarily rejects objections that the co-Fiduciaries and their
professionals failed to allocate gains and appreciation of assets to the Residuary Trust,
stating only that RMM II failed to produce evidence of"improper conduct on the part of
the Executrices/trustees..." (Report at p.87)
119. To the contrary, as a result of the undervaluing assets at the time of
distribution to the Martial Trust and at the time of distribution to Kim Mumma (see
Objection Nos. 10 and 11, above), the gain and appreciation on such assets was
effectively transferred to the Marital Trust and Kim Mumma.
120. Crist also notes that the gain on the exchange of shares of PSC and the
appreciation of the assets received in that exchange, appear to have been allocated to the
Martial Trust.
121. This violates the rule that in the case of a pecuniary formula Marital Trust,
all such gain and appreciation is to inure to the benefit of the Residuary Trust. In re
Althouse, supra.
Objection No. 17: To Conclusion No. 10 regarding account and distribution of
Fulton Bank Building:
122. The Auditor summarily rej ects obj ections that the co-Fiduciaries and their
professionals improperly accounted for the distribution of the Fulton Bank Building,
stating only that the co-Fiduciaries and their accountant, Hadley, testified credibly as to
the values of the property. (Report at p.88)
123. The Auditor's conclusion in this regard misses the point of the objection:
that the two transfers of this real estate, both accounted for as of March 31, 1988—the
32
first from the Estate to the Marital Trust, and the second from the Marital Trust to Kim
Mumma--were both accounted for as distributions of income.
124. The same asset was listed on the Estate Account as principal, and there is
no reasonable basis for the re-characterization of this piece of real estate as "income."
125. The reasonable inference is that this was done to circumvent the 5%
limitation on principal distributions by calling real estate, "income"—a clear violation of
the Will.
Objection No. 18: To Conclusion Nos. 11 regarding accounting for the Leadville
Colorado property:
126. The Auditor here simply defers to the testimony of the co-Fiduciaries and
their accountant as to valuation of the properties. Neither Hadley, nor the co-Fiduciaries
are real estate appraisers.
127. The Auditor had no independent appraisal and failed to explain why the
position of RMM II, who has extensive background in the sale and development of real
estate, was not credible.
Objection No. 19: To Conclusion Nos. 12 and 13 regarding accounting for the
Bender and Grove properties Holly Springs, Pennsylvania:
128. The Auditor here simply defers to the testimony of the co-Fiduciaries and
their accountant as to valuation of the properties. Neither Hadley, nor the co-Fiduciaries
are real estate appraisers.
129. The Auditor had no independent appraisal and failed to explain why the
position of RMM II, who has extensive background in the sale and development of real
estate, was not credible.
33
130. The values used by the Estate were flawed in that they failed to appraise
the value of the mineral rights on these properties.
Objection No. 20: To Conclusion No. 14 regarding unauthorized and illegal actions
affecting Mumma family business entities:
131. The Auditor here summarily dismisses, without even discussing, the
numerous and substantial transactions implemented by the co-Fiduciaries, that violated
the transfer restrictions and applicable legal requirements, including (without limitation):
a. The purported merger of Middle Park and Bobali, and other issues
relating to the status and ownership of these corporations that were the
subject of four days of trial before Judge Bratton of the Dauphin County
Court of Common Pleas, captioned Morgan v. Mumma et al (Dauphin
County CCP No. 2010-11490 EQ), tried over the course of four days in
February and May of 2013, and pending decision by Judge Bratton. This
litigation was instituted by Lisa Morgan, individually and as Trustee of
this Estate, and it is submitted that it is the proper forum for resolution of
these issues.
b. The improper implementation of the Plan of Liquidation for Kim
Company and PSC, in which the transfer restrictions in Article 33 of the
Pennsy Supply Inc Bylaws were violated.
c. The disputed ownership of PSC, HighSpec and Lebanon Rock, on which
RMM II has demanded a jury trial. (See Objection No. 3, above)
d. Other claims referenced in the Post Hearing Brief of RMM II, attached
hereto as Exhibit"A"and incorporated herein.
34
132. The failure to address these issues represents a lack of due consideration
by the Auditor and an error of law.
Objection No. 21: To Conclusion No. 15 through 41:
133. With respect to these conclusions, the undersigned is unable to adequately
review and respond to same in the time provided and accordingly, to the extent such
conclusions are not already addressed in the foregoing obj ections (which are incorporated
herein) RMM II incorporates his objections and Post Hearing Brief as if set forth herein,
and reiterates his request for more time to fully and adequately respond.
134. In the meantime, attached hereto as Exhibit "C" are the abbreviated
objections of RMM II, which were filed by him on September 16, 2013 and which he has
requested be incorporated in these objections.
Objection No. 22: To Auditor's "Additional Matters" Nos. 52 and 53:
135. Under the caption "Additional Matters" and in his proposed Order, the
Auditor proposes apportioning the costs of the audit to the parties, allocating the largest
share (57.39%) to RMM II. (Report at p.124) and, in addition, assessing one-half the
Estate's attorneys fees against RMM II (Report at p.125)
136. The Auditor does not specify the legal basis or authority for allocating
costs of the audit or awarding attorney's fees to the Estate, and it is believed that these
recommendations are beyond the scope of the audit and Order for appointment of an
auditor.
137. Nor does the Auditor specify the factual basis for allocating 57.39% of the
costs to RMM II, other than the conclusory remark that he was "obdurate" and
"unprofessional toward the Court, my position, the other attorneys and opposing
35
parties...", and complaints that he presented irrelevant evidence and witnesses, failed to
fulfill promises to provide relevant evidence and witnesses.
138. It is premature to pass judgment on whether and to what extent the
evidence submitted by RMM II was irrelevant or meritorious. '
139. The reference to "obdurate" conduct smacks of an assessment of sanctions
under 42 Pa.C.S.A. §2503, which provides for the award of attorneys fees, as costs, to a
participant in litigation; and this same remark and reference to "unprofessional conduct"
suggests a sanction of contempt.
140. If the Auditor has the authority to impose either of these, which is
doubted; such sanctions, require more formality, including at the very least, a proper
pleading setting forth the factual and legal basis for the sanctions, and an opportunity for
a hearing on the iss�e.
141. The issue of allocation of costs or award of fees should be held in
abeyance until these matters are concluded, and addressed, if at all, in a separate
proceeding with appropriate due process.
Objection No. 23: To Auditor's proposed relief of a plan of liquidation:
142. For the reasons set forth above, RMM II objects to the relief of overruling
the objections and awarding fees and costs.
143. It is also noted, however, that the Auditor does not, in fact, confirm a
specific distribution, but authorizes, by separate Order, that the Trustee proceed with her
proposed pan of liquidation.
36
144. RMM II has previously objected to this same relief in his May 16, 2013
Objections of Robert M. Mumma II to Auditors Interim Report of April 24, 2013, and
similarly obj ects here, on the grounds that:
a. The proposed liquidation of the assets of the Estate and Trusts suggests
the liquidation and disposition of assets of corporations and entities that
are not parties to this action, and are indispensable to such relief;
b. The authorization of such transactions is beyond the subject matter of this
Court; and
c. The proposed liquidation of the assets, by necessity, effectuate a change
in the constitution of the assets held by the Estate and Trusts, violating
the terms of Articles Seventh and Eighth, and the rights of the
beneficiaries to receive distribution of the residue of the Estate and Trusts
"as it is then constituted"—that is, as it was constituted upon the death of
Kim Mumma.
WHEREFORE, Objector requests this Court enter an order sustaining his
objections and extending the time to further supplement these objections to October 14,
2013.
Dated: September 18, 2013
Robert B. Eyre, Esquire
Foehl & Eyre, P.C.
27 East Front Street
Media, PA 19063
610-566-5926
Attorneys for Robert M. Mumma, II
37
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
In re: ESTATE OF ROBERT M. :
MUMMA,Deceased. : ORPHANS' COURT DIVISION
:
: No. 21-86-398
CERTIFICATE AND PROOF OF SERVICE
I hereby certify that a true and correct copy of the foregoing been served pursuant to Pa.
R.A.P. 906(a) by first-class United States mail, postage prepaid, this 18th day of
September, 2013, on the following:
Amy R. Fritz, Court Reporter
Central Pennsylvania Court Reporting Services
P.O. Box 508
Carlisle, PA 17013
Joseph D. Buckley, Esquire
1237 Holly Pike
Carlisle, PA 17013
Ivo V. Otto, IV, Esquire
George B. Faller, Esquire
Jennifer L. Spears, Esquire
Martson Law Offices
10 East High Street
Carlisle, PA 17013
Brady L. Green, Esquire
Wilbraham Lawler& Buba
31 St Floor
1818 Market Street
Philadelphia, PA 19103
Richard F. Rinaldo
Williams Coulson, LLC
16th Floor, One Gateway Center
Pittsburgh, PA 15222
Ms. Linda M. Mumma,
38
P.O. Box 30436
Bethesda, MD 20824
Robert B. Eyre
Counsel for Robert M. Mumma, II
39
In re Esta.te of Robert M. Mumma, : COURT OF COMMON PLEAS
� Deceased : CLTMBERLAND COLJNTY
: ORPHANS' COURT DIVISION
: No. 21-36-0398
: POST-HEARING BRIEF OF ROBERT M.MUMMA,II AS BENEFICIARY UNDER
THE WILL_OF ROBER M.MUMMA.DECEASED
I. AUTHORITY
The�arnberla�d County Orphans' Court has jurisdiction pursuant to 20 Pa. C.S. § 711, et
seq., Pa. O.C.R. 8 and C.C.O.C.R. 8.
II. CASE HISTORY
Robert M. Mumma("Decedent"),Petitioner's father, died on April 12, 1986. In his Last
Will and Testament(the"Will"), Decedent establ�shed two trusts.�One was a Marital Trust,
comprised of fifty percent(50%)of his estatel and the other was a Residual Trust. Will,pp. 2-4.
The Will provides that the income from both trusts was to be distributed to Decedent's
wife, Barbara McK. Mumma during her lifetime. Will,p. 2. Mrs. Mumma had the right to
invade principal from the Marita.l Trust for reasonable needs to mainta.in her standard of living,
as well as a right to take the greater of a$5,000.00 or five percent(5%)distribution of the
principal value of the trust,to be distributed upon request from her on an annual basis. Will,pp.
2-3. The Will directed that at Mrs. Mumma's death,the residual assets of the Marital Trust were
to be distributed to Decedent's four children per stirpes. Will,p. 4. The principal of the Residual
Trust was also to be distributed to Decedent's four children upon Mrs.Mumma's death. Id.
At his death,Decedent owned, operated,was an executive of, or was otherwise closely
involved with numerous closely held companies. These included Pennsylvania Supply Co.,
Pennsy Supply Inc.,Kim Co.,Nine-Ninety-Nine,Inc. and Hummelstown Quarries,Inc., among
others.2 The executive boards and shareholders of all of these companies were comprised of
Decedent,Mrs.Mumma, and their four children. Further, Decedent a.nd Petitioner each owned a
fifty percent(50%)interest in two other companies,Lebanon Rock,Inc. and High-Spec,Inc., a
real estate holding company.
At the time of his death,Decedent owned a 98.31%interest in Pennsylvania Supply
Company("PSC"). PSC served as an umbrella holding company for Decedent's numerous a.nd
wide-ranging business interests. The remaining minority shareholders of PSC were Petitioner
and his three sisters, each holding an outright interest of 0.42%. PSC also held an 83.42%
interest in Kim Co., another holding company closely owned and operated by the Mumma
family. The remaining minority shareholders of Kim Co. were Mrs. Mumma and the four
Mumma children. Id. Kim Co.was a 50%shareholder of Union Quarries, and owned a 40.95%
interest in the common stock and all of the 10%preferred stock of Nine-Ninety-Nine, Inc. The
minority shareholders of Nine-Ninety-Nine, Inc. common stock were the four Mumma children.
The three shareholders of Nine-Ninety-Nine,Inc. 8%preferred stock were Petitioner's three
sisters.Nine-Ninety-Nine,Inc. owned the entire 100%interest in Pennsy Supply,Inc.,which
itself had three wholly owned subsidiaries. In addition,PSC had a 14.29%interest in Middle
Park,Inc., a realty holding company,whose other shareholders were the four Mumma children.
The genesis of the bulk of the Trust assets can be traced back to the will of Walter M.
Mumma,Decedent's father. Walter M. Mumma died in 1961. The primary assets of Walter M.
Mumma's Esta.te were five (5) shares of PSC,two(2) shares of Pennsy Supply,Inc. and twenty-
four(24) shares of Highspire Sand and Gravel Limited(HS&G). Walter M.Mumma's Will
'The actual amount of the Marital Trust is 50%of the gross estate,less any amount granted to Decedent's wife
under probate.
2
created a trust for the benefit of his four grandchildren, Petitioner and his sisters. Decedent and
the Dauphin Deposit Trust Company(DDT)were appointed Executors by the Dauphin County
Orphans' Court. Walter M. Mumma's Will created four(4)trusts for the benefit of his four(4)
grandchildren. The trusts were funded by 25 percent of Walter M.Mumma's Estate's assets,
with any leftover shaxes goi.ng to Petitioner. The trusts were funded pursuant to the"shaxe and
share alike"provision of Walter M. Mumma's Will.
PSC had two wholly owned subsidiaries: Pennsy Supply,Inc. (PS,I -Entity#272024)
and Fiala Crushed Stone Corp. (FCS -Entity#.120660).3 HS&G owned the Silver Springs
Quarry. FCS operated this quarry and sales of the product were conducted under Pennsy Supply,
Inc. Immediately after Walter M. Mumma's death,Pennsy Supply,Inc. and FCS were merged.
Fiala survived and changed its name to Pennsy Supply Inc. This was still Entity#120660.
HS&G was liquidated. Walter M. Mumma's estate received the Silver Springs Quarry as a
distribution under the plan of liquidation. A third party,Jerry Simpson,purchased 1250 shares
of PSI stock at par value of$100 for a tota.l of$125,000.00. Walter M.Mumma's estate
contributed the Silver Springs Quarry and other assets to PSI in exchange for 1250 shares at par
value. The estate then exchanged this stock for 1333 shares of Kim Co. stock.
On or around December 29, 1961,Kim Co. and Simpson executed a Shareholder
Agreement("Kim Co. Shareholder Agreement"). Subject to that Agreement, Simpson was
required to first offer his shares of Kim Co. back to Pennsy Supply Inc. subject to its 30-day right
of first refusal. The Agreement provided that any PSI shaxes held by Kim Co.upon its
dissolution were to be offered back to the company,then to the shaxeholders, and only then to the
2 For the purposes of this brief,Nine-Ninety-Nine,Inc.and Pennsy Supply,Inc.are one and the same.
3 Pennsy Supply,Inc.was incorporated in 1958. In an Amendment of Merger in 1961,Pennsy Supply,Inc.merged
with Fiala Crushed Stone Corp.
3
open market. Kim Co. Shareholder Agreement,Dec. 29, 1961. Pennsy Supply Inc. signed a
joinder to the Agreement. Specifically,the Agreement held that
shaxes of[Kim Co.] now held or to be hereafter leased shall not be sold,
assigned,transfened,hypothecated, encumbered or otherwise disposed of,
either during the lifetime of the shareholder or after death,except in accordance
with the provisions of this Agreement.
Id. Paragraph 3 of the Agreement further provided that any shares issued to Decedent or
Petitioner were subject to the same restrictions. On January 5, 1962, PSI by action of its Board
of Directors approved a joinder to this agreement. The terms of this agreement were the tenns of
PSI Bylaw 33, adopted by the Directors and ledgered on all outstanding shares held by Kim Co.
and Simpson.
On August 1, 1963 Simpson entered into an agreement to sell 1250 shares of Kim Co. to
Decedent. Simpson received$125,000.00 and Decedent received 1250 shares of Kim Co. See
Assignments of Shares Separate from Certificate,Aug. l, 1963. Kim Co. also agreed to waive
the terms of shareholder's agreement. The agreement further terminated Simpson's rights under
the December 29,1961 agreemeat. PSI was not party to the agreement.
Decedent then gifted all 1250 shares to his four children on August 5, 1963. These shares
were held by Decedent as custodian for each child. Petitioner was issued 314 shares and each of
his sisters was issued 313 shares. Petitioner served as a director and officer of PSI from 1968
until his resignation in 1978.During this time he attended Board meetings and signed contracts
a.nd financial agreements on behalf of the company. Theoris Ebert also signed many of these
documents a.nd attended these meetings as Secretary of PSI.
PSI owned the Silver Springs Quarry and subsidiaries Kimbob,Inc.,Derry Aire,Inc. and
Pennsy Supply,Inc. (PS,I-Entity#272025). In 1980 Decedent and Petitioner determined to
divide the aggregate operations from the building material, concrete, asphalt and trucking
4
operations.
Muxnma family attomey Williaxn D. Boswell formed a new corporation,Ten-O-One,Inc.
(1001)in October 1981. On January 4, 1982 Boswell and H.G. Lake changed the name of 1001
to Pennsy Supply, Inc. Immediately thereafter Pennsy Supply,Inc. changed its name to Nine
Ninety-Nine,Inc. (`2JNN").
Decedent died on April 12, 1986. Mrs. Mumma and Lisa M. Morgan, one of Decedent's
daughters,were named co-Executrices and Trustees of the Marital and Residual Trusts. At the
time of Decedent's death,Petitioner and his three sisters each owned three(3) shares of
Pennsylvania Supply Co.,the vast majority of the shares being owned by Decedent. Petitioner
and his sisters each owned 150,000 shares of Middle Park,Inc. Financial Analysis, Summary
IX. Petitioner also owned 334 shares of Kim Co. and 314 shares of NNN common stock. Id.
Decedent's Will named Mrs. Mumma a.nd Lisa Mumma Morgan,Decedent's daughter and
Petitioner's sister, as co-executrices and trustees of both the Marital and Residual Trusts. Initial
meetings with Estate counsel determined that all four Mumma children were 25%beneficiaries
of Decedent's estate, subject to the two Trusts.
In November 1986, esta.te counsel from the firm Morgan Lewis and Bockius(ML&B)
advised that Kim Co. should be dissolved for tax reasons. In December 1986,the shareholders of
Kim Co. elected to liquidate the assets of Kim Co. into PSC. Kim Co. Liquidation Agreement.
The 1250 shares of PSI held by Kim Co. were to be transferred to a liquidating trustee, for
distribution to the Kim Co. shaxeholders. At the time, Petitioner was Vice President and his sister
Barbara Mann Mumma was Secretary of Kim Co. As detemuned by ML&B the shareholders of
Kim Co. were the four children,Mrs. Mumma, and PSC. It was at this point that the terms of the
December 29, 1961 agreement were not complied with and Petitioner was not advised of the
5
restrictions upon the Kim Co. shares. In December 1986,the shareholders of Kim Co. elected to
liquidate the assets of Kim Co. into PSC. Kim Co. Liquida.tion Agreement. .
Shortly thereafter,the co-executrices began negotiations to unilaterally sell shares of
NNN and Hummelstown Quarries,Inc. ("HQI"), along with real esta.te holdings,to be sold as the
assets of PSI,to an Irish compa.ny called CRH plc. Affidavit of Robert M.Mumma,II, in
Opposition to Defendant's Motion for Summary Judgment, Cumberland Co. C.C.P.No. 99-2765
("Affidavit"). Petitioner asserted his right to first refusal but was rebuffed by his mother shortly
thereafter. Id.;see also Letter from Barbara McK,Mumma to Robert M. Mumma,II,November
20, 1986,Letter from Robert M.Mumma,II to Barbara McK. Mumma,November 2, 1988,
Letter from Robert M. Mumma,II to CRH, June 30, 1989. Upon Petitioner's exercise of his
right of first refusal, CRH backed out of the sale. Affidavit. This triggered years of complex and
intertwined litigation over the Decedent's esta,te that is still ongoing to this day, and of which the
instant matter is a part.
In December 1988 Decedent's Esta.te took the position that it controlled a holding
company,Nine-Ninety-Nine,Inc. (]vNN)that held a112500 shares of PSI. On December 27,
1988 NNN held a shareholders'meeting to elect directors and approve the sale of its subsidiary,
Pennsy Supply,Inc. to CRH plc, an Irish holding company. The motion to sell the company was
denied.
CRH determined in September of 1989 that for various reasons it would not pursue the
purchase of Pennsy Supply,Inc.
In 1993 all outstanding shares of NNN were canceled by action of the directors of NNN.
One thousand(1,000}new shares of NNN were issued to Kodie Acquisition Corp. At that point,
1000 shares were outstanding,none of which were held by Petitioner. On July 8, 1993 ML&B
6
prepared a Subscription Agreement for the Acquisition of the Kodie shares. All shares of Kodie
were then sold to CRH plc. At the time of this sale Petitioner was not a shareholder of NNN.
Meanwhile,numerous shares of the various corporations were transferred to fund the two
Trusts.
III. FINANCIAL ANALYSIS
The will provides at THIRD that all taxes etc.be paid out of the general estate as an expense
of administration. Analysis of the wills of Robert M. Mumma indicates that he established two
trusts.
1. Marital Trust representing 50%of the gross estate
2. Residual Trust
The Will provides that income from both trusts must be distributed to the wife during her
lifetime. The wife has the right to invade pri.ncipal from the trust for reasonable needs to
maintain his wife at a standard of living equal to what she enjoyed during her lifetime and a 5%
of the value of the principal portion of the trust to be distributed by a request from her on an
annual basis,this right is not cumulative. The Will directed at the death of the wife that residual
assets would be distributed to the four children.
Marital Trust
Will—Section Seven
Paxa�ra�h 1
The Will of Robert M. Mumma provides for the establishment of a marital trust. It
bequeaths 50%of the gross estate as detennined for estate tax purposes to the marital trust for
7
the benefit of his wife,Barbara Mumma. That amount is to be reduced by any other benefits
Barbara received outside of probate, such as the salary continuation plans decedent devised as a
source of income directly from the corporations.4 The total gross estate as reported on line 1 of
Form 706 was $16,645,786(See Summary I); one-half of this amount is$8,322,893.
�.�.��.,.�„��,»m�...�,�.n�,a.,..,��..�,M._ w..x...��.:...�,......:�w..........,..�M.��,r.�..,.,.s.,._,�..H�,.�..�._. �
;; Summa�I
�,�,�...,��,.v:��a,�.�.,�,a.��,b�M��a.,�,�x..,,..rv,M,���,��„�.�.�,:..,,.��,��,,�,��,.�����.,�,�4:�,.��,»�,��x,�,m.:�,.�,,,,�..��,�,.w�,.��.�... r 9x�
� Estate of Robert Mumma Reconciliation to Federal Form 706 h�Y
: �,.�.�.�;�.��.��.M.�.��..��.e.a.. �,,.�..��._ �.:aRr a.�:R: a.�.�..,_� �A..aK _ �..
.: .,�....� ,.,..�.� �.w.�� .� �.:� Yx ..��;, ..�. ,,��. �.,..w �o�A ^ r....v. _�.._,..x,.��_�.�...
�Total Begmnmg Balance of Assets Fust Accountmg(Fstate p 9) 15,462,407 :
�x��. � �
Pro�erties Not Included m First Accountm�w.�;.�...�.�.����.�,... r�v.,.�...,�.�..�.�.���.�..�4 .�...:.�. �:.a...m....�N. .� :;
��.��,.,.M.��..,�.�.��.>.�:,x �.,�v
� Sailfish Point Property-Third Accounting(Estate Sch.AA Sold 4/2/99) � ;; 365,000 �
; w.,�.�.,��,,..M�,,,���..,�,»�,�..�..�:..�,e.�,���.,,��..�,,::��m.,�w.,.�:..�..�....�:V,���.�.�:�..h�.�,:,�,�,��r�.���..�,..�x.�,.�.�,..�� .a.�x....,,:t.�..:�,,.ri,....�._.w, .,
: Leadville,CO Property-Fourth Accounting(Estate Sch.AA Sold 9/4/98� � 3,161
� ':iK'.:.W'.'GaAr'IN.aYdit.:d%:xtmf.a:a�xn:::).v,y:y:T:xMS�.o:.:�wwt::W:>�r•va:�.A'keWS.v. .Jd..:+:.YHws.. .s.xrna..RV.av:S..>:.urF.::`.y,;o..;s�..•...mnu.ua-�w.�.ca:...:� �.w.-M.n.v.�,lt. v.5i.n.sn ..n..e..�
; Total Assets per Estate Accountings 15,830,568 ;
�x,..�.,,:,.�.,�. �.M:.:,m .. Y�r :.,._._.....,.,.�,....tt..�.��..�r�:,,
� ��r�,�..�x,���,��,��>w.�.w,,..<�..��._.__..�..�rM.,��..,.,.�w.H,.��.,N.�.,�..xW��.�,ww�,-.�,�_�..�.�.. ..,�.n.a.
Life Insurance Policies-Form 706,Schedule D 516,765 ;
_... _ .�...................._....... _ . .... _ ............ ...,............._ ......... .... .......
_ _ . .� .. ,
s Joint Property-Form 706,Schedule E($596,906.87 X 50%) ; 298,453 =
� ,
�,�u,.,x.�.,,�,�..�,.�:,�.�.rxw.�.�:.�..,.���.x,.x.�w:.�..M�...Mx�M�:.:.�r,.,r.:..,.._,.,�..,�:M..w....,�,,..�_,,:t.�,M.r.�...,....,....,.s.>..N,.....,.�,.��..�.�..�..�H..,,YU.... �. ,.,.. w,. : ...... . r::T..:.
Total G�oss Estate-Forna 706 16,645,786 :
Parag_raph 1
Per the Will,the trust was to be funded by cash,property, or a combination thereof;transferred
property was to"be valued as of the date of its distribution."
: Para�ra�h 3
The Will sta.tes that Barbara Mumma was to receive all of the income from the trust,to be paid
out at least yearly.
Para.�ra h�3
4 Since Mrs.Mumma held a very minor interest in Kim Co.and no interest in PSC,or Pennsy Supply Inc/NNN the
salary continuation plans were paid at the expense of the other shareholders.After the death of Decedent the other
shareholders were the four children.Since the cost of the plan already reduced the corporate eamings it was
appropriate to reduce the contribution to the marital trust.
8
\
As stated in the Will,the trustee is authorized to distribute "in addition to the income
heYeinabove specified, so much of the principal of this Trust as she may deem necessary or
advisable to reasonably provide her(the wife's)support, health, welfare, maintenance, or
comfort, to maintain for her a standard of living which she has during our married life enjoyed,
taking into account, however, my wife's income,from other sources including, but not limited to,
all income from trusts, estates, and business interests, as well as available principal assets."
Paxag�raph 3
In addition to the limited invasion right mentioned above,the beneficiary may "request annually
in writing a distribution to her by the trustees from the principal of this Trust of up to Five
Thousand($S,000)Dollars or up to five(S%)percent(or�S,000 if greater) distribution of the
then principal of this Trust, whichever shall be the greater." This right is not cumulative. We
have not received copies of these written requests.
In reviewing the documents,the trust distributed shares of Nine Ninety-Nine,Inc. and
Hummelstown Quarries,Inc.to Mrs. Mumma.
Attachments Summary IX and Summary X detail the ownership interest of Decedent based upon
the Pennsylvania inheritance tax return filed by the estate. This flow chart indicates that
Decedent's Estate had a controlling interest in all the entities that are listed in the ta.x summary
which the exception of some minority interests owned by the children and wife. All family
members controlled these entities with the exception of the Union Quarries which was also
owned by Grantor Trust of M. C. Hempt of 50%; all other assets were controlled by 100%of
Robert M. Mumma's family members. Additionally,the accounting for the estates and trusts
9
there is no indication of any valuation or data related to Middle Park Inc. of which Pennsylvania
Supply Company had a 14.29% interest and the four children owned the remaining shares.
Analysis of the documents of the estate and trusts indicate that there were certa.in
distributions and assets to Mrs.Mumma that satisfied a portion of her income interests and also
her 5%right to principal distribution under the Will. Additionally, after Decedent died there was
liquidation of the stock of PSC,making it difficult to trace these assets within the accounting of
the estate.
Distributions to Mrs. Mumma from Marital Trust:
The following shares of NNN,Inc. were distributed as income from the Marita.l Trust:
yw1:�.v.s�v:+>su,�c....r::e»v.ya:er:a::�.xr�,...,.><.w..:ara'n.:...o::.».xv:o,.vY'.sv.-....:....<:�..s..:.. ...r�a....y.w�:w�.:vu,....,.r.......n.acraau.wa:..��v.�c��ne�..:�xs� ....:,...�.. ....e..... .<o..�..
S.ummat'V II vM�. ...��..._�s....�...H.��...�.�_._.u ..w...,.�....ta,.�
a -...«:o...,«_..r..,...m<.-w,..,,.<.>.,«.,.�..�w..<.,.�w.::.aM,,:�...,.�:.,..�,w:�:<>�..�.>:,,�..,;..:a�,..��<.::�a.d�:,;...:,.w:<.;-.:�,..,;:_,.�,w R�w��.....><..,�:.«:..:�..w.Y.,..:�..�::<:...,.a�:.,<:�,...�;,,�:>�;<w;:� .e.:.:...�.�.._ ..rm....,..�.w......�... . w...,........
Transfers from Marital Tn�st Income to Barbara Mumma
�.�:,,.�,._�w:z �..�.�_: .�.._ _ .m_�A:,� ���,��.�,�....,.:.,�w �,.���..� �.x...�.,�,.x..a.. �a�.�.��r...._.4 n.n �.,.�.� ._�.��.. �.�_�.�x .K�.� r _.�..�_� _�... ,._.
� �
�
,_�.��,.��.��..�t�.�.��� x,:..,��.. ...�. .:.::.�, �_�:.,,�xK,u��a s _,�.�....... ..�..,.. r ..,t�... ...x� . .,:s _,..,�. ..�...�� r.n... . . . _,_._�.t_� r _
�Accounting£
...�L Y
: Trust P�y� Date Shares Value
, �F�,r....—��:..�M�...�;m.=,. v... :..�,� �:.:A,�.�». ..._,....,..,......�. N.,,.�.,,.,��. .�:.H.>„�,�..,_�,a. >..a.� ..,,---a�. —�..,. .�,<..�..�..—r,s., .. ,
', :: First 3 86 �Nine Ninet�Nme,Inc Common Shares �U1/OS/1988 �55 8368 " $ 144 902 36
:�,�x.��� �.�,.uc��,�.�a..n_�, <r�3M�., y.z�..�.. �..�..�,��,��...:�. .>.w..�,.� .�,......�..�.<.��<��. ,z..k.,H� :���.x,....:���,�< .����,w_ . ..<�G.�. �.,��,,��. ,�..
�
First 86 &Nine Ninety-Nine,Inc.-Preferred Shares �11/19/1986; �70.8421 �; 104,655 92; '
::.,w. � �....� w,� .a:,� �._ �....»� wY�..Ma ..�.,.... ..,..a... ..�..�. ..�e.k.. .w....� k..
. .: u...F �
,.,
� ...��.,. : ..�......
� Total :: $ 249,558 28
The following shares of Nine Ninety-Nine,Inc. and Hummelstown Quarries, Inc.were
distributed as 5%of the then principal of the trust:
For each of the distributions of NNN,Inc. from income and principal,the common shares
were consistently valued at$2,595.10 per share, and the preferred shares were consistently
valued at$1,477.31 per shaxe. The shares of Hummelstown Quarries,Inc.were consistently
valued at$1,299.27. These were the values attributed to the shares at the time that they were
transferred from the Estate of Robert M. Mumma into the Marital Trust on December 28, 1987.
10
Based on the Wil1,the then pri.ncipal value of the trust assets would be based on the fair
market value of all assets held in the trust at the date of distribution. It appears that this did not
occur. We have not received copies of any appraisals that show the value of trust assets on any of
the above dates of distribution. As indicated in Summary V,the transfer of stock on July 5, 1993
,
(27 shares common a.nd 31 shares preferred)was valued much lower than the resulting sale price
on July 21, 1993 would have indicated.5
Will—Section Seven
Para,�ra�h 4
The Will authorizes the executors, at their discretion,to make a QTIP election for any amount of
this property. The Will also states that it is the decedent's expectation that election will be made
for all properiy. This election was made on Federal Form 706.
P�a�a�h 5
The Will additionally sta.tes that upon the death of Barbara Mumma,all principal is to be divided
equally between the four children per stirpes.
QTIP Election
Form 706 indicates that an election was made under IRC §2056(b)(7)to claim a marital
deduction for qualified terminal interest property. The total amount elected was $10,811,784.
This includes the $8,322,893 to be transferred to the marital trust,the$1,627,963 to be
5 After funding the value of the principal amount is going to change as happens in the real esta.te and stock market.
The will specifically says 5%of the principal and that requires a valuation at the time of distribution,Easy to
accomplish with publicly traded stocks,more difficult with real estate or closely held corporations.
11 "
transfened to the residuary trust, and$861,018 of jointly held property,life insurance policies
and specific bequests to Barbara Mumma.
Residuary Trust
Will—Section Ei�ht
Para�raph 1
According to the Will; all the rest,residue and remainder of the estate property was to be placed
in a Residuary Trust, "to hold, manage, invest and reinvest in the same, to collect the income
and pay over or apply the net income to or for the benefit of my wife, Barbara McK Mumma, at
least yearly."
Para�raph 1
The Will states that the trustee, other than Barbara Mumma,was authorized to distribute
Principal to Barbaxa Mumma. It specifically states that "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 fYOm other souYCes including, but not limited to, all income from trusts, estates,
and business interests, as well as available principal assets."
Paxa�.ra�h 2
12
Upon the death of Barbara Mumma, all principal is to be divided equally between the four '
children per stirpes.
Nine Ninety-Nine,Inc. Stock
On December 28, 1987 common and prefened shares of Nine Ninety-Nine,Inc. were transferred
from the Estate into the Marital Trust. The shares which had been valued at$2,495,665.85 were
received into the trust at a value of$3,170,423.01 causing the Estate to realize a gain on
distribution in the amount of$675,057.16.
During the period from December 28, 1987 to July 5, 1993 shares were transferred from the
Marital Trust to Barbara Mumma.Mrs. Mumma received a total of 50.70%of the common
shares and 35.9%of the preferred shares.
Therefore,based on this analysis, a controlling interest in the common stock of Nine Ninety-
Nine,Inc.was distributed to Baxbara Mumma. On July 21, 1993,638.228 common shares of
Nine Ninety-Nine,Inc. were sold. The fiduciary acquisition value of the stock, $1,759,984.15
agrees to the total value of common and preferred stock remaining in the marital trust after
transfers. Since the number of shares above(349.745 common and 576.966 preferred)does not
agree to the total sold(638.228 common), it appears that the preferred shares were converted to
common stock; i.e. one common shaxe received for every two preferred shares. (349.745 +
576.966/2=638.228)
Throughout this entire period,the Nine Ninety-Nine,Inc. stock was consistently valued at the
value it held on the date that it was transferred from the estate. This value was used for the final
transfer of shares on July 5, 1993 (See Summary III)which preceded the final sale of shares by
13
16 days, even though the sale reflects that the shares were worth more than three times this value
on July 21, 1993 (See Summary V). The total shares transferred from principal to Barbaxa
Mumma, 303.842 common and 252.268 preferred, or 429.976 total common(303.842+
252.268/2=429.976)had a fair market value of$4,225,245.16 on July 21, 1993 (429.976 shares
@$9,826.70). As compared to the value at which the shares were transferred, $1,161,180.58
(See Summary I�,this represents a difference of$3,064,064.58 ($4,225,245.16-
$1,161,180.58).
Hummelstown Quarries,Inc.
On December 15, 1987, shaxes of Hummelstown Quarries,Inc.were transferred from the Estate
into the Marital Trust. The shares which had been valued at$593,421.04 were received into the '
trust at a value of$799,051.80 causing the Estate to realize a gain on distribution in the amount
of$205,630.76.
During the period from December 28, 1987 to July 5, 1993, shares were transferred from the '
marita.l trust to Barbara Mumma.
On July 21, 1993, 500 common shares of Hummelstown Quarries,Inc. were sold.
Throughout this entire period,the Hummelstown Quarries,Inc. stock was consistently valued at
the value it had on the date that it was transferred from the estate.This value was used for the
final transfer of shares on July 5, 1993 (See Summary III)which preceded the final sale of shares
by 16 days, even though the sale reflects that the shares were worth more than three times this
value on July 21, 1993 (See Summary VII). The 115 shares transferred from principal to Barbara
Mumma,had a fair market value of$506,221.95 on July 21, 1993 (115 shares @ $4,401.93). As
14
compared to the value at which the shares were transferred, $149,416.18 (See Summary VI),this
represents a difference of$356,805.77 ($506,221.95 - $149,416.18).
Pennsylvania Supply Company
Pennsylvania Supply Company was liquidated on December 19, 1986. Robert M.
Mumma held 700 of the tota1712 outstanding shares as of the date of death. Proceeds from
liquida.tion were $9,242,798.30 on the 700 shares valued at$9,144,473.00. This created a gain on
liquidation in the amount of$98,325.30. (See First Accounting,Estate,page 15.)The Financial
Statement of Pennsylvania Supply Company dated December 19, 1986 indicates in Footnote 11,
page 12 that on July 8, 1986 the company redeemed 85 shaxes of common stock for$500,000.
Therefore, after the redemption the estate held 615 of the remaining 627 shares outstanding.
The assets listed on Summary VIII below were not included in the beginning balance of
properties listed in the First Accounting. I have assumed that they were received into the Estate
upon liquidation of Pennsylvania Supply Company.
Summary VIII �
Pennsylvania Supply Company was made up of a number of subsidiary companies. Summaries
IX and X illustrate the ownership of these subsidiaries. The information for these charts was
obtained from the Pennsylvania lnheritance Tax Return REV-1500. The Pennsylvania
Inheritance Tax Return also indicates life insurance policies tota.ling$1,007,089 were owned by
the subsidiaries. This may account for a portion of the difference in the above analysis.
15
The total proceeds from the sale of Pennsy Supply Businesses were approximately$40 million.6
Summary XI shows the sales presumed are included in this figure.The sales proceeds received by
Baxbara Mumma are based on the sales price of similar shares sold within the marital trust.
� ..�.
Summar�XI
,;�..� >,<�.:.->...,-» ��..,...�-....,e.,�.aw>...,,x..Mr..n,..« w..a,w..w. .,. ..,;.aw,..... ..mu,.w..:uo. ,,r..,�..x»w><<, n.a�........-�..ww.<..,-�.>,...: .mw„.,.�....,.. e �u < .
, .sw>.�..:.-��r. . ... .. -
Proceeds from Sale ofPennsylvania Supply Company �
�Marital Trust Sa1es Procceds
..
����.�.:��.��.,�,�.,�.>_���.�.:�_ ..��.:w.���.�..��:.�..r.xv:� �......... . .:..,�: .�.�...._.�..�. _.�..M...,,�.� �,.n-�.� ._.. .....�..��_. .�.��.� �:
: Nine Ninety-Nine,Inc.(Se�S�mmary� ` $ 6,271,675 92 '` �
:��..��.,�._.�,��.�.<�,,.�...r: :.�,��.,�,:.�,���:,�r _ :c,:�..��..,�.>.....�.. .� ��:�� �.::�.,���.�...,�...n �.....c..,..
' Bender&Grove-Mount Holly(�e M�rital Trust
�, .�,�.,b��. a��,�r,m���.. � H�,,. p,. ... r..
�..<,.,�.�,F� ��,,...N.,p„�..��.�, �>.w,�>r_ .<..M..., � _,. ...�_.. ,r,.�.� .�.<. ,.
Second Aceounting-Part I-Schedule B) 1,373,180 09; '
��w...>��w��.�.�,,.�� r,.:.x..r. :.�.,.,:�n.� .�...,��Y.��,....��;,.,,< �,...:..F. > ..._�x,....,._ ,
.. ....<: .n»: <...�..:�.�..:.�., �,..:; r�<.,... ...
:< Hummelstown Quarries,Inc.(See St�mmary VII) 2,200,963.38;� �
:�.�,,:>.��.����..�.�.�:,�.�.�..��.,� �.�.Y:.,�,��:.�,�.�.�.:�A�....w.� �k.���,.G�W.a.�H:.w<... . ...: ,..,...�. .y._�.�:. ...�:..ti. _<<�.:.:�.. >..��. �.�>.HtiM .�..�.
Tota1 Marital Trust Sales `$ 9,845,819 39`
aLebanon Rock,Inc.
s<: (See Fstate Second Accounting-Part I-Schedule A 1)
� L?.ra:us,xxracW...u:.c:wV:.:.:u:^.:.:;:.'.:L'[.k�.a.:��'.:...,w'.I.�.i6.a�n.x:.G.awYi:L.ts.t.<z�.u/.xxi+w<i..:xa!���W��...�::ut �E....xax.,..u..:..�.. � ,.��aF�.,.w:F::FY::.s:.F>�c' �.t..<..,,. 4..w:..:.: a...u......>. >.... .w. .a.....
i: . �._;,..... .��.....
< Funds Received for Option to Purchase 140,120 42
� .�m.�..u�w.�:�_�,�.,�.�.�.w,-�,�.,��«,��.,.�v��<.. .;..,:__.�.,,.:..x��„�:w..,.s. H.�.; .......... �:�...,m> 4y:�,_�. ..<<....�,.....
Inventory Va1ue Assigned 2,000,000 00<
Total Lebanon Rock,Inc. 2,140,120.42;
Total Proceeds Reported by Trust and Estate : 11,985,939 81
�Bazbara Mumma Transfers*
<
Nine Ninery-Nine,inc.
i:��«.w«���..�..�..�v..�-,.��...�,.««.,:>wa.;s.�r>..<:x::... ,....:. .>..<,.,.,, ,.....:...« ,.... ..„:....�.,....... .M�,�s, :�.,,.�,<,,,, r..�,.._ ......... .....a... �..>
359.6788 Common and 323.1101 Preferred Shazes 5,122,009 35= ;;
: HummeLstown Quarries,Inc.
115 shares @$4,401.93/share(See S�uYUnary VII) 506,221 58 : ;
..� .....,....w......�...m.�__,,.._ .� . �. ,
Tota1 Bazbara Mumma Transfers 5,628,230.93;
Total �; �<$ 17,614,170.74
� c�..�.r.,,�.��.�..�.d.�,..,..�.,�.._.. ,�..�., .M��....>.�a.,��, ,., �.:�,.... ..:, ..;,�. a, . _ .,x .u.a, ..M
, �L,ess:Total Fstimate Sa1es Proceeds (40,000,000.00�
::�:..�:���>•.a�,wu��<�:�,��w..��x�,,.u..���.�,.»:>,.....,..�_ ...._.�.......�... .,....._ . .....,....,.<. .... , ..�..�. �....... _.......� ..�_
�Unlocated Difference ;$ (22,385,829.26}
���:....vxY..Fnn<�.:,v...�'wmH+�':..:u.ro...:«2.�.�.:.r..r,':�.�.ru.�'.... ....'::�:....>. .....-...0 ..":>:-.v.. . ..::::;;. .. ..� »»....r w . ....... ..?..w . ............ ...>. . ......... .,�.
_�.,.....wx.n..vw.x..v...s..._...v.v...�n.,,n..�.,.,. .......n......... ..,..n..� .. . , v
_*Assuming a conversion of 1 share common received for every 2 shares of preferred:
�Barbara Mumma Transfers : Before Conversion� After Conversion
�Rnm>ama..wFa.y.m.rr..nmro:x«»-....-.vr�n�.u�>.w.......o-.a..'....ee.v>:....::H. o�...�.:.n:.... ..r�:.:.rn:...y>.-.x..:. ..,.rvr.,..v ...:.x.>.r:�....a.�.-< .�:�rm�p:;n:n...-...n.......wrv..._..>.n.....n� r.. ... .
� Common Shares 359.6788 ; �: 359.6788:
>�.K,.�.a.�.G��.,�..�. ,,....�_>,,, ,�.A..., .. ,_.T�,.... .. .. .., , ,.�
` Preferred Shares 323.1101 :; ' 161.5551:
�>-k�=w�,�,:,�����_a:x-��.� � .��:�.:. .,�:..::...�._�:..>.f._....:�.k.9 ^.,:::- ........ :..<:�. __,...>._. ...,; ,_ ...............�..u_.. �r�..._...
Total Common Shares After Conversion 521.2339;
. �...F.��,x.x�..�,x,...�:p,.,x...>�.�. �..�,�,..��'�.�, . .., ,.... ...._.�. >..� .. ,,. . ..�. . .. .,� �
Sa1e Price er Share See S $ 9,826.70
��Total Praceeds of Sa1e of Nine Ninety-Nine,Inc =$ 5,122,009 35:
6 This price is$20,000,000 less than the price proposed for the sale in 1989.In 1989 the sale was for Pennsy Supply,
Inc.The final sale was for Nine Ninety Nine,Inc.
16
As indicated from the flow charts,there is a preponderance of ownership of Pennsylvania
Supply Company and its subsidiaries by the Estate of Robert Mumma. However, in our analysis
of the accountings of the estate and trusts that are presented,we were able to trace about
$17,614,170.74 of the approximately$40,000,000 received from the sale of the Pennsy Supply
Businesses.As the flowchart of the ownership of the companies owned by the estate indicates,
there were minority ownerships in Pennsy Supply Businesses and its subsidiaries,primarily by
the children of Robert and Barbara Mumma.
The transfers,to satisfy Baxbara Mumma's income or 5%annual request of principal,use
values which appear to be at odds with the Will which requires transfers to be valued at current
value. As indicated by the total transfers of both Nine Ninety-Nine,Inc. and Hummelstown
Quarries,Inc.,there is significant disparity between the values used at transfer date a.nd the
ultimate sale price. Specific attention can be drawn to the tra.nsfers that occurred only a few da.ys
prior to the sale.
The intent of the Will was to esta.blish QTIP trusts which would ultimately transfer the
value of the assets to the children of Robert and Baxbara Mumma. The marital trust provided
income and requested 5%annua.l principal withdra.wals to be paid to Barbaxa Mumma. The only
other right to invade was based upon the need for the maintenance of Barbara Mumma's
lifestyle; no such withdrawals were made. It appears,based on the documents we have viewed,
that the valuations of assets transferred upon request by Barbara Mumma or in satisfaction of
income were significantly understated thus reducing the intended residual value of assets
remaining for final distribution to the children as under the will. Additionally, an amount in
17
excess of 50%of the proceeds from the sale of Pennsy Supply Businesses does not appear on
any of the estate or trust documents or tax returns that we have been provided.
Morgan Lewis and Bockius proposed a plan of liquidation to the shareholders of
Pennsylvania Supply Company and Kim Co. Their stated purpose was to transfer by liquidation
of the companies the assets directly to the shareholders. Morga,n Lewis drafted a Plan of
Liquidation and Dissolution,forms for filing with the Pennsylvania Corporation bureau and
determined that the direct distribution of the real estate assets would not be subject to transfer
taxes. On November 30, 1986 the shareholders adopted the plan of liquidation. It was agreed that
Pennsylvania Supply Company and Kim Company would not be dissolved,but remain as active
entities. Despite this agreed upon plan the estate, Morgan Lewis and Hadley usurped the
authority of the shareholders and took another ta.ck. On December 19,1986 Morgan Lewis filed
articles of incorporation for Hummelstown Quarries Inc.
Analysis of the Financial Statements of Pennsylvania Supply Company dated December 19,
1986 ,Footnote 1,page 6 indicates that the sta.tements apply to "the period July 1, 1986 through
December 19, 1986 immediately prior to the investment of certain assets subject to the related
liabilities in Hummelstown �uarries, Inc. in exchange for 627 shares of common stock."The
schedule below the note list the value of the Net assets invested as $42,171. This is the net value
of the assets listed in Note 3 OPERATIONS
18
This translates to the quarry properties at Hummelstown,Bowmansdale,and Dromgold were the
assets contributed to Hummelstown Quarries�at a net value of$42,171 on the afternoon of
December 19, 1986.
NOTE 1 continues to "Subssequent to this investment, Pennsylvania Supply Company was
liquidated after close of business on December 19, 1986. The compnay's assets and liabilities
were then effectively distributed to its shareholders. That same day after the close of business
Hadley valued the 615 shaxes of HQI distributed to the estate at$593,421.��In the esta.te
- accounting the 615 shares reach anew high of$799,051.80.
NOTE 3 OPER.ATIONS. `Operations of the company include property rental and e�traction of
stone deposits unde�royalty agreement.
Rental Properties are located principally in Harrisburg:However, certain rentals are received
for properties in South Hanover Township, Watts Township and Bowmansdale.
Royalty is revenue (minimum $210,000 per year)from an a�liate for materials removed from a
quarry owned by the company in South I�anover Township, Dauphin County."
a
The only operation required by Pennsylvania Supply Company to receive the royalty payments
was to cash the checks. Pennsy Supply,Inc. was the affiliate that produced the aggregates.
Using a capitalization rate of 5% gives a minimum value of$4,200,000 for the assets
distributed to HQI. The value of the property is directly related to the price of the aggregates.
Given it's close proximity to Hershey and the additional processing of a high calcium limestone
�Testimony of Hadley was that he(with approval of the executrix and MLB)decided that individuals should not
19
(plans were ongoing to produce this product when Decedent died) even the$4,200.000 value is
low.
The conclusion after evaluating the transactions and documents is that Barbara Mumma
would have the right to income from both trusts during her lifetime and right to invade. The Will
indicated that any distribution of assets would be valued at the date those assets are being
distributed. Therefore, if the assets were never re-valued other than the value used to transfer
these assets into the trusts,it appears the assets transferred to satisfy the 5%principal withdraw
rights affected to asset value that was retained by the estate and trust. The subsequent sale of
operating businesses was for$40,000,000,we have been able to account for proceeds in the
estate as detailed on summary XI, $11,985,939.81 that were actually received by the trust
established by the esta.tes of Robert M. Mumma. Assets transferred to Barbara Mumma
accounted for additional proceeds of$5,628,230.93. Proceeds for$17,614,170.74 from the sale
of Ni.ne Ninety-Nine Inc. and other operating businesses were able to be accounted for.
Therefore, in excess of$22,000,000 of the proceeds for the sale of this corporation have not been
accounted for within these documents.
As of August 5, 1961,the four beneficiaries of this Bsta.te a.nd Walter M. Mumma's Estate
rightfully should have owned 100 percent of Pennsy Supply Inc—50% from original Simpson
shares,gifted to them by Decedent, and fifty percent(50%) from shares previously held in
Walter's Esta.te. Except for the dilution of interest in the exchange of 1250 shares of Pennsy
Supply Inc. for Kim Co. Proceeds received by the Marital Trust and by Mrs. Mumma are directly
related to the dilutive effect of the exchange of 1250 shares of PSI for 1333 shares of Kim Co.
The purpose of the transfer restriction in PSI Bylaw#33 was to prevent this very situation.
own quarries.Both Decedent and Petitioner already owned quarries(Benders and Fiddlers)in our personal names.
20
The transaction related to the merger of Hummelstown Quarry,Inc.which is denoted on the
financial statements of Pennsylvania Supply Company on December 19, 1986. On page 6 of that
financial statement,under corporate liquida.tion indicates that Hummelstown Quarry,Inc. assets
subsequent to the issuance of the statement but before liquidation were transferred to the
corporation in exchange for 627 shares of common stock. One interpretation of this footnote is
that a 50%ownership in the outstanding shares of Pennsylvania Supply Company was
transferred in this merger.After the liquidation of Hummelstown Quarry,Inc.,the shareholders
of Hummelstown Quarry,Inc. receive 627 shares in effect they receive a 50% interest in
Pennsylvania Supply Company for the Hummelstown Quarry,Inc. assets which are also denoted
on page 6 of the financial sta.tements for Pennsylvania Supply Company for 1986. The estate
ultimately presented a value of$799,051.80 for their 615 shares of Hummelstown Quarry,Inc.
that appeaxed in the estate accounting after the liquidation. However, since Pennsylvania Supply
Company on the initial valuation of the esta.te had a date of death value of$9,144,473,if 50%
interest would approximate $4,570,000. The merger of Hummelstown Quarry,Inc. also which
appears to be disproportionate to the ultimate proceeds received for the sale of Hummelstown
Quarry,Inc. of$2.2 million dollars.
If the above conclusions are accurate the value of assets transferred to Barbara Mumma were
significa.ntly understa.ted below fair market value. This could have created asset transfer well in
excess of what was anticipated under the will of Robert M.Mumma. The assets transferred to
Barbara Mumma would be controlled by her Will and under her estate could distribute these
assets to beneficiaries not stated in Robert M. Mumma's Will.
21
APPENDICES
�,���" :
=� - :
�:���
� ��,
,�
;�;���
...:�_�
��.�y..��.t.�e r.�
;��'�'
� _ . . �+ � 'rw : . , .
. . .�:�� � ��. � - . � . . .. � � . �.
. . .. :�'�: ..... .� � ..-� .... �� .. . ..� . .. � . . _
_ ..� .� . . �.
� . ..��.� . . . .
�
. � .. . .. �� � .�.� � ..
..�� ���� ��
�' �
.� . � � �. .� �I$ ..:_� -... � ��_. � . � .. �
.. . � � ���'a� ,� :�'�" . . . .
�.
�
. . . �:'� . . . � .
�. � � , � .: �.. .. ..�.� �. . . � �.��� . � . . . . .
�� � �� - . � - ���..� �-�. . �. .. .. �.
� .��� � ..�. �.q+C ��. ' s!��_ .. . � ..
. ��.- � � �. � .
: �� -� �.� �:� �� �:. � -:� �:,� . . . .... .. �. .
. � � �. gi.'. . . wt'_ . . .
_ - . . _: � .: � � �� � � . . . . . .
i
��, �,� � �
� �
x
��� � � �
. .�� :. .�� �� . �':::� . . ... . .
;�� � �"�".:�
;c ; ! �*'� _
�e
; ; �''..'�
g ��� �
�":a�"'R�; �.
. ,� ;
� ��� ,�
ina
�; �
�� �
;.: �
����� ��,,
��.� • �w�: ��,;�� a
+ �� ��.� �
r". ���� � �.� -.��� '�`
� .,. � _
� �
�-- �,-� �3:
s�� ' �.� � � �
x;� �:
� :• �� �,
� � �,r..�u�:r�w+.,� �
s�' � s ii�ffi�.pa eer br �?
. , �,. �����
� ��.� ����,
�.��� ����
��� ��:�
��.
..�; :�� �� �
.,,.� ; �:� . � ��
� �
n : . � ..;�
� .:
X
�
`"'nw,'"`�, �«>���
��� �'����
����. o�:��+°� _
_
..� : �H"`.�.��., _
��� s � � ,� � �.'�«; €
� �' � � � � � �
� Y[ � €
�. � :. '... ..,.
" . .� Y�- ��. � � � : � � �
. . . . E � � � . � £ . .. . ..
... . '� � � . '� ��� � k . .. .
� . - . . .������ � .. . � � .. .. . .
. •
. �.�. '.. ":C�. ..`.��.. � . �` �
� . ... � -��� ' .:� r .:...�. .. ; .
� . . '� .� �' � � .. -
s �� � ,�� �
� ��� � �
�
�:� � �
�
��
� � ��� �
_ � �� � � �
;
� � � �
��� � �
� ���` ; ` � ;
� �� � : _
��� J � _
� �
� ' ;. �:
. �_ �
� � �
- �
�a E �� �.�� :�Ci
y,i %.: C{
�� 'r �' �
��, �
� �'
� ' �.x � �
� �
�
;� ` �.� � �,�
� �
� �: �
�` ";��
— � �
�,
��'
f
� �� �
,� � ,�
� ::: � .
, �
< �,
; �
�� �
w �
_ : � ,
.�
: � �
. ' .,: . . � �: _ :. . .. .�' ��,��,F � - � �
� ' , .. � S :'.�: . .� . .
�" �` ; � � :
� ��
� �
. . � . � � . . _fi . . � . . � ..
. � � .� � � _ �. .� : ,: ,� �.. � _. ( �'; .� ..
. . . . �. ,� ' �. �. ��.� �.'.: ,: . �. ���.�� �. . .
.. . � . � :� ��„ �� � . . .
� &. �
� � � � .' . � ,��� . . .. :..
. � � �.���'.� .:� �
� ' P ;
� �. � �
� � �
� � � �
� �
;�' �' � ' {
;� :;. . _
IV. ISSUES PRESENTED
1. Whether the actions and/or omissions of the executrices/trustees violated their fiduciary
duty to the Trusts? (Suggested answer: Yes.)
2. Whether the actions a.nd/or omissions of the executrices/trustees violated the intent of
Decedent's Will? (Suggested answer: Yes.)
3. Whether the actions and/or omissions of the executrices/trustees were in violation of
applicable state law?(Suggested answer: Yes.)
V. ARGUMENT
A. THE ACTIONS AND/OR ONIISSIONS OF THE EXECUTRICES/TRUSTEES
VIOLATED THEIR FIDUCIARY DUTY AND APPLICABLE STATE LAW.
Fiduciaries of an estate or trust are governed by both common law as well as the
Pennsylvania Probate,Estate and Fiduciaries Code. 20 Pa.C.S. §101, et seq. Fiduciaries include
personal representa.tives,guardians and trustees. 20 Pa.C.S. §102. In administering a trust,a
fiduciary"shall administer a trust or estate impartially based on what is fair and reasonable to all
of the beneficiaries." 20 Pa.C.S. §8102. In a corporate setting, corporate directors and officers
are bound by the fiduciary duties set forth by the Pennsylvania Business Corporation Law
(`BCL"), 15 Pa.C.S. §1101, et seq. Corporate directors are bound by the BCL to exercise a
standard of care
in good faith,in a ma.nner he reasonably believes to be in the best interests of the
corporation and with such care, including reasonable inquiry, skill and diligence,as a
person of ordinary prudence would use under similar circumstances.
15 Pa.C.S. §1712(a). Similarly,a corporate officer is required to perform his duties as a
corporate officer under the same sta.ndard, and can avoid liability by doing so. 15 Pa.C.S.
§1712(c). In addition, a fiduciary is bound by the Uniform Trust Act,which prescribes the basic
obligations of a trustee. A trustee shall"administer the trust in good faith, in accordance with its
22
provisions and purposes and the interests of the beneficiaries and in accordance with applicable
law." 20 Pa.C.S. §7771. "A trustee shall administer the trust solely in the interests of the
beneficiaries." 20 Pa.C.S. §7772(a).
Pennsylvania courts have upheld this standard. "Perhaps the most fundamental duty of a
trustee is that he must display throughout the administration of the trust complete loyalty to the
beneficiary and must exclude all selfish interest and all consideration of the interests of third
persons." Warehime v. Warehime, 722 A.2d 1060, 1063-64(Pa. Super. 1998), citing Bogert,
Trusts� Trustees §543, at 217-218 (2nd Ed. Rev. 1993).
Throughout the decades-long mishandling of the estate,the Executrices/Trustees have,
time and again,violated their fiduciary duties to the esta.te and its beneficiaries.
a. The allocations of Decedent's High-Spec,Inc. and Lebanon Rock,Inc.stock
to the Trust violated Petitioner's right of first refusal,violated fiduciary duty
and state law,and were self-dealing.
The allocations of Decedent's corporate stock to the Marital Trust violated Petitioner's
right of first refusal pursuant to several shareholder agreements.
In 1986,the Executrices/Trustees began negotiating with CRH plc, an Irish corporation,
to sell the assets of Pennsy Supply Inc. to CRH. Pursuant to the Pennsy Supply Inc. bylaws as
well as a shareholder agreement in place,the shareholders were required to offer the shaxes back
to the company,then to the other shareholders, and only then to the open market. Pennsy Supply
Inc. Bylaws,par. 33; Pennsy Supply Inc. Shaxeholder Agreement. Petitioner had inherited,
however small a minority, a few shares of Pennsy Supply Inc. from Decedent. However,the
Executrices/Trustees compiled an offer to sell the entirety of the assets of Pennsy Supply Inc.
without first offering the shares back to the company or to the remaining shareholders.
23
The closest that Executrices/Trustees ever came to fulfilling their fiduciary duties was to
state that they would"entertain"an offer from Petitioner to purchase Pennsy Supply Inc. Letter,
Mrs.Mumma to Petitioner,Nov. 20, 1986. In addition to being conirary to the corporate bylaws
and shareholder agreement,the Petitioner informed the Executrices/Trustees, as well as CRH,by
several letters over the course of several years that he wished to exercise his right of first refusal.
Letter,Petitioner to Mrs. Mumma,Nov. 2, 1988; Letter, Petitioner to Jack Hayes,June 30, 1989.
Later,the Executrices/Trustees sold the Estate's shares in High-Spec, Inc. and Lebanon
Rock Inc.without offering the shares back to the sole remaining shareholder, Petitioner,pursuant
to a share restrictive agreement. High-Spec, Inc./Lebanon Rock Inc. Share-Restrictive
Agreement. Under those agreements,the shares were required to be offered back to the
company,then to the remaining shareholders, and only then for public sale. Despite this,the
Executrices/Trustees sold the Estate's interest in High-Spec,Inc. and Lebanon Rock,Inc.
It is plain on its face that the Executrices/Trustees failed to exercise their basic fiduciary
duties. Far from acting impartially in the best interest of all beneficiaries,the
Executrices/Trustees engaged in self-dealing. The courts of this Commonwealth have repeatedly
and frequently condemned self-dealing as a violation of fiduciary duty. "An executor is a
fiduciary no less than is a trustee and, as such,primarily owes a duty of loyalty to a beneficiary
of his trust." In re Estate of Harrison, 745 A.2d 676, 679 (Pa. Super. 2000),citing In re
Noonan's Estate, 361 Pa. 26, 30, 63 A.2d 80, 82 (1949). The Pennsylvania courts have been
clear on the prohibition against self-dealing for over a century:
The test of forbidden self-dealing is whether the fiduciary had a personal interest in the
subject transaction of such a substantial nature that it might have affected his judgment in
a material connection ... [TJhe fiduciary's disqualifying interest need not be such as `did
affect his judgment' but merely such as `might affect his judgment.'
24
Estate of Harrison, 63 A.2d at 84,quoting In re Downing s Estate, 162 Pa. Super. 354, 57 A.2d
710, 712 (1948).
In the instant case,it is clear that the Executrices/Trustees had personal interests in the
subject matter over which they were entrusted with fiduciary responsibilities. Mrs.Mumma was
an executrix of the Will as well as a Trustee of both Trusts and the beneficiary of the Marital
Trust. Ms.Morgan was also an executrix as well as Trustee of both Trusts and beneficiary of the
Residual Trust. Neither were deta.ched from the situation or were otherwise disinterested;rather,
their unique status among the family gave them both the opportunity and motive to engage in
seif-dealing to the detriment of the other beneficiaries of the Residual Trust.
b. The Ezecutrices/Trustees have engag.ed in oppressive conduct and violated
state law and fiduciary duty by not recognizing or concealing shareholder
agreements that govern the ownership of corporate stock.
The Executrices/Trustees have engaged in a pattern of continuously and egregiously
failing to abide by or otherwise concealing shaxeholder agreements that govern the ownership of
corporate stock. In so doing,their bad faith actions have caused pecuniary harm to Petitioner
and the other beneficiaries of the Trusts.
In November 1986, it was recommended to the owners that the shares of Kim Co.be
liquidated to avoid certain ta.x implications. All six of the shareholders of Kim Co. agreed to the
sale and a plan of liquidation and dissolution was executed. Kim Co. Liquidation/Dissolution
Agreement. The plan specifically called for the liquidation of Kim Co. and the subsequent
liquidation of Pennsylvania Supply Co. with all assets to be specifically distributed to the
shareholders pro rata. After the failure to sell Pennsy Supply,Inc. to CRH,the
Executrices/Trustees sold all the assets of Nine-Ninety-Nine,Inc. (�vNN)to CRH. NNN was
merely a new corporate identity of Pennsy Supply, Inc. The vaxious machinations in which the
25
Executrices/Trustees engaged in order to gain control of the voting stock of Pennsy Supply Inc.
violated their fiduciary duties to Petitioner a.nd the other beneficiaries.
Pursuant to the BCL,oppressive conduct occurs when
in the case of a closely held corporation,the directors or those in control of the
corporation have acted illegally, oppressively or fraudulently toward one or more holders
or owners of 5%or more of the outstanding shares of any class of the corporation in their
capacities as shareholders, directors,officers or employees.
15 Pa.C.S.A. §1767(a)(2). Oppressive conduct has been defined by the courts as"unjust or cruel
exercise of authority or power." Ford v. Ford, 878 A.2d 894, 9G0(Pa.Super. 2005), citing Leech
v. Leech, 762 A.2d 718 (Pa.Super. 2000) (citation omitted). Conduct of a corporate director is
: oppressive if it"defeats the reasonable expectations of the minority shareholders." Ford, 878
A.2d at 903. Freezing out the maj ority in order to benefit the minority is a breach of fiduciary
duty. Id. at 905. While in this matter,it was the minority shaxeholders themselves engaging in
oppressive conduct against the majority shareholders,the precepts hold true nonetheless,as this
is a close corporation situation in which the fiduciaries owe an even more stringent duty of caxe
than usual. Here,it is clear that Morgan Lewis' proposed liquidation of Kim Co. and subsequent
failure to file a draft of their own proposed liquidation plan solely to facilita.te the sa.le of the
assets of Pennsy Supply,Inc. followed by the assets of NNN. Oppressive conduct is in violation
of both the BCL and common law fiduciary duty.
Additionally, as part of the Kim Co. liquidation,the Esta.te unilaterally converted the
shareholders' interest in Union Quarries, Inc. as well as the shareholders' royalty interest. The
Estate continued to mine the quarry and failed to pay royalties to the shareholders,all while
operating without a valid transfer agreement. This was done by circumventing the transfer of
stock and failure to fill out�ransfer documents. More crucially,no transfer agreement was ever
signed by either Petitioner or his sister Barbara M. Mumma as officers of the corporation.
26
Rather, a transfer agreement was fraudulently signed by Mrs.Mumma as"Chairman,"a position
not provided for in the bylaws or articles of incorporation. Conversion of the assets and royalties
of Union Quarries, Inc. continues to this day, and it is presumed that all proceeds go to the Trust.
Further oppressive conduct has been going on since 1986 when Elco,a subsidiary of
Pennsy Supply,Inc.bega.n mining dolemetic limestone at Lebanon Rock,Inc.'s quarry. After
seven(7)years of legal disputes,the Superior Court held that without a written document,Elco
had no right to mine the quarry. The Esta.te then entered into an option agreement and sold the
royalties to a third-party buyer.
c. The actions and omissions of the Ezecutrices/Trustees with respect to the
shareholder agreements that would have precluded the estate from acquiring
stock in multiple corporations,including but not limited to,Pennsylvania
Supply Co.B,Pennsy Supply Inc.,Bobali Corp.9,Lebanon Rock,Inc.,High-
Spec,Inc.,Nine-Ninety-Nine,Inc.
d. The Ezecutrices/Trustees improperly assumed ownership interests in the -
shares in High-Spec,Inc.,Pennsylvania Supply Co.,and/or Lebanon Rock,
Inc.
The Pennsy Supply Inc./Nine Ninety Nine Inc. stock that was owned by Kim Co. was
acquired by Mrs.Mumma in 1961. That stock had been owned by the estate of Walter M.
Mumma, Decedent's father. The beneficiaries of Walter M.Mumma's estate were his
grandchildren(Petitioner and his three sisters). By an order of August 8, 1961,the Dauphin
County Court directed that the Silver Springs Quarry(which at the time had a book value
$73,900.00)was an asset of Walter M. Mumma's estate. Decedent and Dauphin Deposit were
co-executors of Walter M. Mumma's esta.te. Rather than deeding the quarry to Walter's estate it
was deeded to Pennsy Supply Inc. Walter's estate then received 1250 shares(at par value
g Walter M.Mumma's Will specifically mentions that shares held by him were subject to an Agreement with his
fellow shareholder,Robert M.Mumma(Decedent).
9 Bobali Corp.was formerly known as Gibson Boulevard,Inc. Shares of Gibson Boulevard,Inc.were covered by a
shareholder agreement.
27
$100.00),a 50%interest in Pennsy Supply Inc. Decedent owned 7130 shares of Kim Co. (at par
value$10.00). Decedent then exchanged the 1250 shares of Pennsy Supply Inc. stock for 1333
shaxes of Kim Co. stock(value$13,333.00).
The purpose of the Dec. 29, 1961 Shareholders' Agreement between Simpson and Kim
Co. and joinder of Pennsy Supply Inc. was to protect the interests of Petitioner and his sisters by
giving them the right to buy back the original ownership interest in Pennsy Supply Inc. if Kim
Co.were ever dissolved or Kim Co. ever sought to transfer its interest. See Kim Co. Shareholder
Agreement,Dec. 29, 1961. These transactions were not carried out at market value but rather at
book value. Due to this,the beneficiaries of Walter M. Mumma's Esta.te were highly diluted in
their ownership interests in the quarry by the transfer of 1250 shares of Pennsy Supply Inc. to
Kim Co. The other 50%of Pennsy Supply Inc. was owned by Jerry T. Simpson. In 1963
Simpson elected to sell his interest. Simpson and Decedent entered into an agreement whereby
Decedent purchased Simpson's shares. On August l, 1963, Simpson and Decedent entered into
a sale agreement that incorporated the December 29, 1961 Agreement. Without the authority of
the Board of Directors of Pennsy Supply Inc. or Kim Co.,Decedent negotiated the August 1,
1963 Agreement with Simpson to buy Simpson's shares. As such,this violated the terms of the
December 29, 1961 Agreement,but Decedent purchased Simpson's stock. That stock was then
distributed amongst Decedent's four children. �
Effectively, all of the stock of the corporation was either owned or had been owned by
the four Mumma children. The dilutive effect of the prior transfer of Walter M.Mumma's
Estate's interest in Pennsy Supply Inc.resulted in a less than fair market value for the Pennsy
Supply Inc. Absent the transfer from Walter M.Mumma's Estate of the 1250 shares of Pennsy
Supply Inc.,the four Mumma children would have owned 100 percent of Pennsy Supply Inc. in
28
1963. However,the purpose of Bylaw 33 was to allow that interest to be returned to them if Kim
Co. ever elected to transfer its interest or upon its dissolution. Absent any effort by Kim Co.to
take such action,upon the death of Decedent,pursuant to the terms of the Will,the four Mumma
children automatically recovered their prior-owned ownership interests.
Lisa M.Morgan,Executrix/Trustee and one of Petitioner's sisters,later testified at a
Cumberland County Orphans' Court auditor heari.ng that the Executrices/Trustees hired William
Zeiders of Morgan,Lewis&Bockius in the spring or summer of 1986 when they decided to sell
the business. This sets the decision to sell before the first meeting of the beneficiaries in August
1986. The proposal to liquidate Kim Co. and PSC was made in November 1986. Each
beneficiary was lead to believe that each was getting his or her share of these locations and
percenta.ge of the royalties and rents. However,the Executrices/Trustees diverted the properties
that were business locations,Hummelstown into another new company,Hummelstown Quarries,
Inc.,that defeated the entire purpose. This was really designed as a step in putting together the
package of"Pennsy Supply Businesses". From the testimony of long-time Mumma family
accountant George Hadley it was clear that they purposefully chose to not distribute the assets to
the shareholders. It was also determined that Kim Co. had undisclosed sales of real estate and
diverted additional funds to the Esta.te and not the shareholders. In fact there were sales of over
$2,000,000 of assets by Mrs. Mumma acting alone as Chief Executive Officer—a position not
provided for in the bylaws. The Executrices/Trustees managed to sell this real estate without the
directors' resolution that was previously necessary. Ultimately,the Executrices/Trustees
deceived the shareholders,withheld the transfer restrictions in the bylaws and ended up with a
package they could sell to CRH using the assets of PSC, Pennsy Supply Inc. and Kim Co.
e. The Ezecutrices/Trustees violated the Share Restrictive Agreement
applicable to High-Spec,Inc.when they refused to offer the Decedent's
29
shares in High-Spec,Inc.to the remaining shareholder at book value and -
when they transferred the Decedent's shares in High-Spec,Inc.to the
Residuary Trust in January 2002.
Separately from all the other Mumma family businesses,Petitioner and Decedent had
created two other companies: a real estate investment company called High-Spec,Inc. and a
quarry called Lebanon Rock, Inc. Petitioner and Decedent were each fifty percent(50%)owners
and shareholders in both compa.nies. Both companies operated under a Share Restrictive
Agreement. Under the Agreements,the companies required that any shares be first offered back
to the companies,then to the shareholders, and only then for public sale. Similarly,the
Agreements held that upon death of a shareholder,the shareholder's personal representative was
required to offer the shares in the same order. See Lebanon Rock,Inc. and High-Spec,Inc. Share
Restrictive Agreements.
Upon Decedent's death,the Executrices/Trustees immediately began to move to liquidate
the assets of High-Spec. In 1998, a condo in Sailfish Point,Florida,that was owned by High-
Spec was sold for$359,332.91. Estate—Third Accounting. Then,in January 2002, 5,000 shares
of High-Spec were transferred to the Residual Trust,with another 5,000 shares being tra.nsfened
This was in direct violation of the Share Restrictive Agreement and the BCL. Per the BCL, any
transfer of shares in violation of a Share Restrictive Agreement shall be ineffective and the
: corporation shall have the right to purchase the shares back from the transferee for the same price
as the ineffective transfer. 15 Pa.C.S. §2323.
B. THE ACTIONS AND/OR OMISSIONS OF THE EXECUTRICES/TRUSTEES
VIOLATED THE INTENT OF THE WII�L
a. The Ezecutrices/Trustees' failure to significantly fund the Residual Trust
unti12002,while the Marital Trust was funded in 1987,violated the intent of
the Decedent's Will.
30
On December 28, 1987 common and preferred shares of NNN were transferred from the
Estate into the Marital Trust. The shares which had been valued at$2,495,665.85 were received
into the trust at a value of$3,170,423.01 causing the Estate to realize a gain on distribution in the
amount of$675,057.16. During the period from December 28, 1987 to July 5, 1993 shares were
transferred from the Marital Trust to Mrs. Mumma. Mrs. Mumrna received a total of 50.70%of
the common shares and 35.9%of the preferred shares.
A controlling interest in the common stock of NNN was distribu.tec�to l�1rs.Mumma. On
July 21, 1993, 638.228 common shares of NNN were sold. The fiduciary acquisition value of the
stock, $1,759,984.15 agrees to the total value of common and preferred stock remaining in the
marital trust after transfers. Since the number of shaxes (349.745 common and 576.966 preferred)
does not agree to the total sold(638.228 common), it appears that the preferred shaxes were
converted to common stock; i.e. one common share received for every two preferred shares.
(349.745 +576.966/2=638.228)
Throughout this entire period,the TtNN stock was consistently valued at the value it held
on the date that it was transferred from the estate. This value was used for the final transfer of
shares on July 5, 1993 which preceded the final sale of shares by 16 days, even though the sale
reflects that the shares were worth more than three times this value on July 21, 1993. The total
shares transferred from principal to Mrs. Mumma, 303.842 common and 252.268 preferred, or
429.976 total common(303.842+252.268/2=429.976)had a fair market value of
$4,225,245.16 on July 21, 1993 (429.976 shares @ $9,826.70). As compared to the value at
which the shares were transferred, $1,161,180.58,this represents a difference of$3,064,064.58
($4,225,245.16 - $1,161,180.58).
31
On December 15, 1987,shaxes of Hummelstown Quarries,Inc. ("HQI")were transferred
from the Estate into the Marital Trust. The shares which had been valued at$593,421.04 were
received into the trust at a value of$799,051.80 causing the Estate to realize a gain on
distribution in the amount of$205,630.76. During the period from December 28, 1987 to July.S,
1993, shares were transferred from the marita.l trust to Mrs. Mumma. On July 21, 1993, 500
common shares of HQI were sotd.
Throughout this entire period,the HQI stock was consistently valued at the value it had
on the da.te that it was transferred from the estate. This value was used for the final transfer of
shares on July 5, 1993 which preceded the final sale of shares by 16 days,even though the sale
reflects that the shares were worth more than three times this value on July 21, 1993. The 115
shares transferred from principal to Mrs. Mumma had a fair market value of$506,221.95 on July
21, 1993 (115 shares @ $4,401.93). As compared to the value at which the shares were
transferred, $149,416.18 (See Summary VI),this represents a difference of$356,805.77
($506,221.95 - $149,416.18).
PSC was liquidated on December 19, 1986. Decedent held 700 of the tota.1712
outstanding shares as of the date of death. Proceeds from liquidation were$9,242,798.30 on the
700 shares valued at$9,144,473.00. This created a gain on liquidation in the amount of
$98,325.30. See First Accounting, Estate,p. 15. The Financial Statement of Pennsylvania Supply
Company dated December 19, 1986 indicates in Footnote 11,page 12 that on July 8, 1986 the
company redeemed 85 shares of common stock for$500,000. Therefore, after the redemption the
estate held 615 of the remaining 627 shares outstanding. The total proceeds from the sales of the
Pennsy Supply businesses was around$40 million.
32
There is a preponderance of ownership of PSC and its subsidiaries by the Estate of
Decedent. However,only$17,614,170.74 of the approximately$40,000,000 received from the
sale of the Pennsy Supply Businesses was able to be traced. There were also minority ownerships
in Pennsy Supply Businesses and its subsidiaries,primarily by the four Mumma children.
The transfers,to satisfy Mrs. Mumma's income or 5%annual request of principal,use values
which appear to be at odds with the Will. The Will required transfers to be valued at current
value. As indicated by the total transfers of both Nine Ninety-Nine,Inc. and Hummelstown
Quarries,Inc.,there is significant disparity between the values used at transfer date and the
ultimate sale price. Specific attention can be drawn to the transfers that occurred only a few days
prior to the sale.
The intent of the Will was to establish QTIP trusts which would ultimately transfer the value
of the assets to the children of Robert a.nd Baxbara Mumma. The marita.l trust provided income
and requested 5%annual principal withdrawals to be paid to Mrs.Mumma. The only other right
to invade was based upon the need for the maintenance of Mrs. Mumma's lifestyle; no such
withdrawals were made. It appears,based on the documents,that the valuations of assets
transferred upon request by Mrs. Mumma or in satisfaction of income were significantly
understated thus reducing the intended residual value of assets remaining for final distribution to
the children as under the will. Additionally, an amount in excess of 50%of the proceeds from the
sale of Pennsy Supply Businesses does not appear on any of the estate or trust documents or tax
returns.
Morgan Lewis and Bockius proposed a plan of liquidation to the shareholders of PSC and
Kim Co. Their stated purpose was to transfer by liquidation of the compa.nies the assets directly
to the shareholders. Morgan Lewis drafted a Plan of Liquidation and Dissolution, forms for filing
33
with the Pennsylvania Corporation bureau and determined that the direct distribution of the real
estate assets would not be subject to transfer taxes. On November 30, 1986 the shareholders
adopted the plan of liquidation. It was agreed that PSC and Kim Co. would not be dissolved,but
remain as active entities. Despite this agreed upon plan the estate,Morgan Lewis and Hadley
usurped the authority of the shareholders and took another tack. On December 19, 1986 Morgan
' Lewis filed articles of incorporation for Hummelstown Quarries Inc.
Financial Statements of Pennsylvania Supply Company dated December 19, 1986, Footnote
1,page 6 indicates that the statements apply to "the period July 1, 1986 through December 19,
1986 immediately pYior to the investment of certain assets subject to the related liabilities in
Hummelstown Quarries, Inc. in exchange for 627 shares of common stock."The schedule below
the note list the value of the Net assets invested as $42,171. This is the net value of the assets
listed in Note 3 OPER.ATIONS.
This txanslates to the quarry properties at Hummelstown,Bowmansda.le, and Dromgold were
the assets contributed to Hummelstown Quarries� at a net value of$ 42,171 on the afternoon of
December 19, 1986.NOTE 1 continues to "Subsequent to this investment, Pennsylvania Supply
Company was liquidated after close of business on Decembe�19, 1986. The company's assets
and liabilities were then effectively distributed to its shareholdeYS. That same day after the close
of business Hadley valued the 615 shares of HQI distributed to the estate at$593,421. In the
estate accounting the 615 shares reach a new high of$799,051.80.
NOTE 3 OPERATIONS. `Operations of the company include property rental and extraction
of stone deposits under royalty agreement. Rental Properties are located principally in
Harrisburg:However, certain rentals a�e received for properties in South Hanover Township,
Watts Township and Bowmansdale. Royalty is revenue (minimum $210,D00 per year)from an
34
a�liate for materials removed from a quarry owned by the company in South Hanover
Township, Dauphin County." The only operation required by PSC to receive the royalty
payments was to cash the checks. Pennsy Supply, Inc. was the affiliate that produced the
aggregates. �
Mrs. Mumma would have the right to income from both trusts during her lifetime and
right to invade. The Will indicated that any distribution of assets would be valued at the date
those assets are being distributed. Therefore, if the assets were never re-vdlued other t�ian the
value used to tra.nsfer these assets into the trusts, it appears the assets transferred to satisfy the
5%principal withdraw rights affected to asset value that was retained by the estate and trust. The
subsequent sale of operating businesses was for$40,000,000,we have been able to account for
proceeds in the estate as deta.iled on summary XI, $11,985,939.81 that were actually received by
the trust established by the estates of Decedent.Assets transferred to Mrs. Mumma accounted for
additional proceeds of$5,628,230.93. Proceeds of$17,614,170.74 from the sale of NNN and
other operating businesses were accounted for. Therefore,in excess of$22,000,000 of the
proceeds for the sale of this corporation have not been accounted for,which would indicate
significant value of Decedent's estate's 98.31%initial interest of PSC was significantly diluted.
The transaction related to the merger of HQI is denoted on the financial statements of PSC on
' December 19, 1986. On page 6 of that financial sta.tement,under corporate liquidation indicates
that Hummelstown Quarry,Inc. assets subsequent to the issuance of the statement but before
liquidation were transferred to the corporation in exchange for 627 shares of common stock. It is
Petitioner's contention that a 50%ownership in the outstanding shares of PSC was transferred in
this merger.After the liquidation of HQI,the shareholders of HQI receive 627 shares-in effect
they receive a 50%interest in PSC for the HQI assets,which are also denoted on page 6 of the
35
financial sta.tements for Pennsylvania Supply Company for 1986. The estate ultimately presented
a value of$799,051.80 for their 615 shares of HQI that appeared in the esta.te accounting after
the liquidation. However, since PSC on the initial valuation of the estate had a date of death
value of$9,144,473,if 50%interest would approximate$4,570,000. The merger of HQI also
which appears to be disproportionate to the ultimate proceeds received for the sale of HQI of
$2.2 million dollars.
If the above canclusions are accurate the value of assets transferre�t�Mrs. Niumma were
significantly understated below fair market value. This could have created asset transfer well in
excess of what was anticipated under the Will. The assets transferred to Mrs. Mumma would be
controlled by her Will and under her estate could distribute these assets to beneficiaries not
stated in Decedent's Will.
It is well-settled that the purpose and goal of all testamentary law is to best effectuate the
intent of the testator. In re Estate of Piet, 949 A.2d 886, 890 (Pa.Super. 2008} (citations
omitted). Here,the Execulrices/Trustees clearly,repeatedly and systematically denied the intent
of Decedent's Will in order to engage in self-dealing. Further,the Executrices/Trustees violated
the Uniform Principal and Income Act,20 Pa.C.S. §8101,et seq.,which directs that a fiduciary
� must distribute income and principal according to the trust instrument, even contrary to a
provision in the law. 20 Pa.C.S. §8103(a). Even if a trustee invokes his or her discretionary
power,it must be only to the extent that the end result is fair and reasonable to all beneficiaries.
20 Pa.C.S. §8103(b). In this case,the Executrices/Trustees cleaxly violated both provisions of
the Act.
36
b. The Ezecutrices/Trustees fraudulently terminated the corporate
ezistence of Middle Park,Inc.via merger with another corporate entity.lo
VI. CONCLUSION AND RELIEF REQUESTED
In July 1986,PSC redeemed 85 shares @ $5582/share. The cost to redeem the remaining 615
shares is $3,600,000.00. This would have yielded$4,100,000.00 to the Marital Trust. The
additional proceeds from the life insurance as well as the salary continuation payments to Mrs.
Mumma would have been more than ample to provide for her needs and meet the intent of the
Will. Additionally,there was $1 million in life insurance proceeds, owned by the subsidiaries,
that coupled with notes,would have provided the funds necessary to redeem all the stock over a
five-yeax period. Had the Estate chosen this course of action, as intended by Decedent,there
would have been no need for the Esta.te to expend the exorbitant legal and accounting fees that it
has to this date,and this Honorable Court would not have been burdened by this ongoing
litigation.
For all of the reasons stated above,the objections of Petitioner,Robert M. Mumma,II should
be sustained. The following accounts should be denied: Account of the Marital Trust Under the
Will of Robert M. Mumma,Deceased, for the Period January 1,2004 through July 17,2010,
filed September 10,2010 and Account of the Residual Trust Under the Will of Robert M.
Mumma, Deceased, for the Period January 1,2004 through July 17,2010, filed September 10,
2010.
Respectfully Submitted,
lo While this is a bona fide dispute between Petitioner and the Esta.te,Petitioner respectfully submits that this is not a
rnatter under the jurisdiction of the Cumberland County Orphans'Court. PSC owned shares in Middle Park,Inc.but
the shares were not reported on PSC's Dec. 19, 1986 Financial Statements.
>
37
ROBERT M.l�TUMMA,II
Petitioner, Pro Se
Box F
Grantham,PA 17027
(717)448-1127
38
. �
r► <
10NATHAN M. CRIST
ATTORNEY 8 C4UNSELOR AT LAW
226 WEST CHOCOLATE AVENUE TELEPHONE (7V) 533-6600
HERSHFY, PENNSYLVANiA 17033 FAX(717)533-6244
May 25,2004
Miller Lipsitt, LLC .
P.O. Box 959 �`;
Camp Hill,PA. 17011 '�'
RE: ESTATE�F ROBERT M. MUMMA,DECEASED -'
NO.21-86-398 (CUMBERLAND COUNTY)
ESTATE ACC4UNTING
INTERIM ACCOUNTINGS FOR MARITAL
TRUST UNDER WILL
INTERIM ACCDUNTINGS FOR RESIDUARY
TRUST UNDER WILt
Gentiemen:
You have retained me to review and comment on the Administration of
the Estate of Robert M. Mumma, Deceased{hereinafter the"Decedent") and in
particular the filed Account for Decedent's probated Estate (the"Account"}and
the filed interim accountings for both the Marital Trust(the"Marital Trust")and
the Residuary Trust(the"Residuary Trust") which were created under the Will
of the Decedent.
BACKGROUND MATERIAL
You provided me for review various documentation which including: (i)
the probated Will and Codicil of the Decedent: (ii} the filed Account for the
Estate which covers the period from 04/12/1986 up through and including
09/30/2003 (Contained in 4 Volurnes); (ii} the filed Interirn Accountings for the
�
r :
Miller Lipsitt,LLC
May 25,2004
Page 2 of 25
Marital Trust under Decedent's WiII which cover the periods from 11/19/1986
up through and including 12/ 31/ 2003 (Contained in 4 Volumes); (iii) the filed
Interim Accountings#or the Residuary Trust under Decedent's Wiii which cover
the periods from 11/24/1986 up through and including 12/31/2003 (Contained
in 2 Volumes); (iv) the Pennsylvania lnventory as filed for the Decedent`s Estate;
(v)the Federal Form 706 US Federal Estate Tax Return as filed for the Decedent's
Estate(with attachments}; {vi) the Pennsylvania lnheritance Tax Return as filed
for the Decedent's Estate (with attachments); (vii) Appraisal of He1sel�ealtors
dated January 29,1987(includes real estate owned by the Decedent as weil as
other real estate owned by the various family corporations); (viii) the Federal and
Pennsylvania Fiduciary Income Tax returns for the Decedent's Estate for the
fiscal years ended March 311987 and March 31, 1988; (ix) the Federal and
Pennsylvania Fiduciary Income Tax returns for the Marital Trust Under Wil.l for
; the fiscal years ended December 31,1987 and December 31,1988; (x) your
litigation file in the matter of Robert M. Mumma vs. Dauphin Deposit Bank and
Trust CompanX docketed to No 4753 S 1993 in the Court of Common Pleas of
Dauphin County which includes PA Revenue Department Form 485 (Safety
Deposit Box Inventory Form), the pleadings, the depositions of Robert M.
Mumma II,Bank Manager ponala Cromweli,the Co-Executrix Barbara Mann
Mumma,Barbara Murnma,William Boswell, as well as Dauphin Deposit's
Summary Judgment Motion,Summary Judgment Briefs of both parties and the
opinion of Lawrence Clark denying Dauphin Deposit's Motion For Summary
Judgment;{xi}Internal Memo from David R. t,andry of the law firm of Si�radley,
Ronon,Stevens and Young dated April 27,1989 relating to the plans of the Co-
Executrices of the Estate to "squeeze-out" Robert M. Mumma's shares of the
various corporations.
I also interviewed and quesnoned Robert M. Mumma II with regard to his
family history, the dynamics among the surviving heirs, and the interplay among
.
r ,
Miller Lipsitt, LLC
May 25,2004
Page 3 of 25
the various family holdings and corporations which in which the Estate had an
interest.
DECEDENT' S WILL AND TRUSTS
Wi11/Codicil After certain personal property bequests, Decedent's Will
gives a certain amount unto a standard pecuniary formula Marital Trust with
the rest,residue and remainder to the Residuary Trust. Decedent's Spouse,
BARBARA McK. MC3MMA and his daughter,LISA M. MORGAN, are together
� appointed as the Co-executrices of the Will and as Co-Trustees of both the
Marital Trust and the Residuary Trust.
Marital Trust The Martial Trust amount is lunited to 50°� of the Gross
` Estate as finally determined for Federal Estate Tax purposes. The annual net
income of the Marital Trust is payable to the wife and Co-Trustee, BARBARA
McK. 1��UMMA at Ieast yearly. Her daughter and Co-Trustee, LISA M.
MORGAN is alone given the right to invade principal of the Marital Trust for the
benefit of BARBARA McK. MUMNiA"for her support,health,welfare,
maintenance or comfort,to maintain for her a standard of living which she has
during our married Iife enjoyed, taki.rtg into account, however,my wife's income
&om other sources,including,but not lirnited to, all income from trusts,estates
and business interests, as well as available principal assets." In addition to this
aforesaid principal invasion right-for which Decedent expressly requires there
must be"a deficiency in other avaiiable funds" - BARBARA McK. MUMMA is a
given an annual non-cumulative right to withdraw from the principal of the
Marital Trust the greater of Five Thousand ($5,000.00} Dollars or up to Five (5%)
percent of the then principal of the Marital Trust.
Upon the death of BARBARA McK. MUMMA the remaining principal of
the Marital Trust is to be divided equally of Decedent's four children, RC�BERT
• � 1
r �
Miller Lipsitt, Li,C
May 25,2004
Page 4 of 25
M. MUMMA II, BARBARA M. McCLURE, LINDA M. ROTH, and LISA M.
MORGAN.
The Marital Trust was first funded on November 19,1986 with$2,500.00
in cash from the Decedent's Estate. By December 31, 1987 the Marital Trust had
received additional property totaling$6,287,308.65 from the Decedent's Estate.
Residuary Trust The Residuar��Trust is given"all the rest,residue and
remainder" of the Estate. The annual net income of the Residuary Trust is
payable to the wife and Co-Trustee, BARBARA McK. MUMMA at least yearly.
Her daughter and Co-Trustee, LISA M. 1�iORGAN is alone given the right to
invade principal of the Mazital Trust for the benefit of BARBARA McK.
MUMMA"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,rny wi�e's income from other sources, including, but not
: limited to,all income from trusts,estates and business interests,as well as
availabie principal assets."
Upon the death of BARBARA McK. MUMMA the remaining principal of
the Residuary Trust is to be dividea equally of Decedent's four children,
ROBERT M. MUMMA II, BARBARA M. McCLURE, LINDA M. R�TH,and LISA
M. MORGAN.
;
The Residuary Trust was first funded on November 24,1986 with �
$2,500.00 in cash from the Decedent's Estate. However,unlike the Marital Trust, �
no other property was transferred to the Residuary Trust from the Decedent' s
Estate unti114 years later in the year 2000.
PECUNIARY FORMtJLA�RESIDUAItY TRUST ALL�CATIONS
A pecuniary formula bequest entitles a surviving spouse oniy to a fixed
amount of property specified in dollars. However rather than using a set dollar
.
• ,
Miller Lipsitt, LLC
May 25,2004
Page 5 of 25
arnount,a pecuniary fonnula determines the dollar amount at the time of the
Testator's death. Where there is a pecuniary formula, the marital trust is limited
to the calculated fixed dollar amount. All income earned by a decedent's estate
during administraHon is to be allocated to the residuary trust. See, In re: Estate
of Fike,506 A.2d 398 (198b). Likewise all capital gains or capital appreciation in
the estate assets during adm.inistration is to be allocated to the residuary trust.
See,Althouse Estate�40�Pa. 412,172 A.2d 146(1961).
SPECIFIC PROBLEMS WITH THE ESTATE &TRUST ACCOUNTINGS
I. THE PRINCIPAL PORTI011T OF THE MARITAL TRUST
A►PPEARS T� BE OVERFUNDED
Decedent's WiII specifically Iimits the funding amount to be awarded to
the Marital Trust to fifty (5�%) of the gross federal estate(as determined on the
Federal Estate Tax return� with deduction for the value of all property included
in the federal estate which has passed to the wife outside of probate:
SE VENTH: I f m�tvife, BARBARA McK.MLth�IMA, survives rrre,I give mid bec�ueath
; to the trustees hereiriafter named,an amount equai fo fiffi�(50%)percent of rny total
` gross estnte�s finalty determined for Federal Estate Tax purposes, taking into account
and includircg therein,for cornputation purposes, rny undivided interest in the vaiue of
all my in�erests in properh�zvhich pass orTUhich or haz�e passed to my tvife under other
provisions of this Wilt,or otherruise than under this�iI, but only to the extent that such
interests are,for purposes of the FederaI Estate Tax,inciuded in determining my gross
estnte and allozved cu a ntarital deduction.
Prior to the enactment of the Economic Recovery Tax Act of 1981
("ERTA"},this 50% limitarion was the maximum amount which would qualify
for a marital deduction under federai estate tax law. ERTA liberalized this area
by permitting an unlimited marital deduction. Decedent's Will was executed on
May 19,1982 after the effective date of ERTA. Decedent's Codicil (which did not
make any substantive changes to the Will)was executed on October 12, 1984 only
f , , •
Miller Lipsitt, LLC
May 25,2004
Page 6 of 25
18 months prior to his death. I therefore conclude that Decedent expressly
intended to limit the principal amount in the Marital Trust to the 509'0 linutation.
The Account as filed fails to compute the amount to be awarded to the
Marital Trust with reference to the Federal Estate Tax Return,nor aoes the
Account appear to give credit(for computation purposes} against the amount to
be awarded to the Marital Trust for the value of the joint marital and other
property which had passed to BARBARA McK. MUMMA under other
provisions of the Will or outside of probate(which property was required to be
included in the Federai Estate Tax return as filed).
Total Gross Estate(Federal) $16,645,78b.00
�/z oE Total Gross Fed Estate $8,322,893.00
Less: Schedule M Spousal
Joint&Other Property
Passing Outside Probate (861,018.00�
Total Amount Which Should
Have Been Awarded to
Marital Trust 7,463,875.00
Under the Account as filed,the following principal amounts were actually
distributed to the Marital Trust:
1986- 1987(Vol l,Page 60) $6,289,808.65
2003 - 2002(Vo14,xh E,Page 1) 2,358,359.85
Total Principal Distributions
To Marital Trust $8,648,268.50
The principal portion of the Marital Trust is therefore appears to be over
funded by$1,186,293.50 calculated as follows:
Actual Principal Distributions $8,648,168.50
Required Under Will (7,461,875.00�
Martial Trust Overfunded: 1,186,293.50
. . ' i
Miller Lipsitt, LLC
May 25, 2004
Page 7 of 25
I note that the Account as filed shows an'Estate Tax Adjustment' dated
06/22/90 in the amount of$28,370.00 for additional federai estate taxes paid. I
was not provided with the Estate's closing Ietter from the IRS;therefore I have no
way of knowing if any of this additional estate tax resulted from asset valuation
adjustments on the federal estate tax return. If any asset valuation adjustments
occurred on the federal estate tax return,then the carrying values of those
affected assets should have had corresponding adjustments on the Account,as
the Will directs that the adjusted amounts for federal estate tax purposes are to
be used as the basis for determining the gift to the Marital Trust.
The Account as filed thus(i) fails to conform to the express requirements
; in the Will for calculation of the Marital Trust amount and (ii)fails to provide
requisite information necessary to deterrnine the amount to be properly awarded
to the Marital Trust.
II. IMPROPER ACCOUNTING F�Itf DISTRIBUTION OF ESTATE
INCOME TO BARBAItA McK. MUMMA
Under the Superior Court's holding of In re: Estate of Fike,Supra,aIl net
income eamed by the Estate during administration(other than required interest
� on distributive shares under 20 Pa. C.S.A. �3543}should be allocated to and paid
over to the Residuary Trust,where such income then becomes part of the
principal of the Residuary Trust. Once part of the principal of the residuary
trust,these amounts would be then subject to withdrawal and distribution to
BARBARA McK. ML:TMMA only for her health, support etc and at the time of
each such withdrawal BARBARA McK. l�2UMMA must have a "deficiency in
other available funds".
• / , •
Miller L�psitt, LLC
May 25,2004
Page 8 of 25
Even though she was not an income beneficiary of the Estate, the Account
as filed shows th�t BARBARA McK. MUMMA was distributed directly from the
Estate repetitive cash aistributions totaling$1,625,620.b0 as foilows:
06/05/91 150,000.00
03/31/92 150,000.00
11/10/92 25,000.00
02/05/97 500,000.00
12/23/98 400,U00.00
10/29/01 400,620.04
Ol/04/OZ 7,859.65
TOTAL 1,625,620.69
During the period from April 01,1991 through December 31, 2003 the
Martial Trust Accountings show that Marital Trust distributed cash of
$4,743,229.80 directly to BARBARA McK. MUMMA while at the same time the
Marital Trust continued to retain an additional surns totaling over 2,000,000.00 in
' earned income which wlder the terms of the Marital Trust could also have been
distributed to BARBARA McK. MUMMA instead of being retained within the
Marital Trust.
In my opinion there simply does not appear to be any reasonable
justification for this taking of$1,625,b20.69 cash out of the Estate income
especially when at the same time BARBARA McK. MUMMA had undistributed
Marital Trust income available to her.
III. IMPROPER ACCOUNTING OF PItINCIPAL DISTRIBUTIONS
TO BARBARA McK. MUMMA
A.) THE FULTON BANK BUILDING
The Fulton Bank Building located at 599 Twelfth Street in Lemoyne
Pennsylvania (hereinafter the "FBB") is listed on the Estate Account as a principal
. ' , �
Miller Lipsitt, LLC
May 25,2004
Page 9 of 25
real property asset of the Decedent with a date of death carrying value of
$500,000.00.
The Estate Account provides that as of March 31,1988 the FBB was
transferred to the Marital Trust as a distribution of income in the amount of
$500,000.00. Not only is this an improper characterization of this asset, but there
is no corresponding credit on principal side of the Estate.
The Marital Trust Accounting as filed provides that as of March 31, 1988,
the F�B was transferred to BARB�I'cA McK. MLJMMA as a distribution of income
to her in the amount of$500,000.00 (Vol 1,Schedule D-1, Page 86).
It is my opinion that the Estate's attempted re-characterizarion of the
Fulton Bank Building as income is improper under fiduciary accounting standards.
Furthermore the distribution of this asset by the Marital Trust as an income item
directly to BARBARA McK. MUMMA appears to have been designed to
circumvent the standards for principal distributions from the Marital Trust{health,
support etc and a "deficiency in other available funds") at a time when BARBARA
McK. MUMMA hac�already exhausted her 5�o annual right to principal
withdrawal (which does not require such a standard for withdrawals).
B.) IMPROPER ACCOUNTING OF STOCK DISTRIBUTIONS TO
BARBARA McK.MUMMA
A.} The Accounting for the Maxital Trust (Vol 1,Schedule A-1,Page
34) shows receipt on December 28, 1987 of(i) 55.8368 shares of Nine Ninety Nine,
In�. Common with a value of$144,902.36 and (ii)70.8421 shares of Nine Ninety
Nine,inc 10% Preferred with a value of$104,655.92. The origin of these shares is
unclear but they appear to be stock dividends. They are listed on the Marital Trust
accounting as"Other Receipts" under the income schedule.
B.} These sarne 55.8368 shares of Nine Ninety Nine, Inc. Common with
a value of$144,902.36 and)70.8421 shares of Nine Ninety Nine, Inc 10% Preferred
� ' � '
Miller Lipsitt,LLC
May 25,2004
Page 10 of 25
with a value of$104,655.92 are Iisted as distributed as income to BARBARA McK.
MUMMA. In the case of the 70.8421 shares of Ninety Nine Inc 10% Preferred,
these shares are listed as being distributed to BARBARA McK. MUMMA on
November 19,1986-more than one year before their alleged receipt by the MaritaI
Trust.
C.) Under the express direction of Decedent's Will,any stock
dividends received by either the Estate or a trust created under the Will are to be
treated as principal and not income:
TtiVELFT'H: I direct tlrat all divitl�ends upan slu�res of stock r�t any tinte constifuhng
part of my estnte or any Trust lrerebij estnbIisl�d payable ire stock of tl�e corporatiorr dedanng the
same shatt be deemed to be corpus,except that such dividends paid regularly{i,e,at regular or
substantially regutar intervals)otet of current earnings nia�,at the discretion of m�Executors or
trustees be deerned to be income.... .
D.} It is my opinion that the Estate's attempted re-characterization of
these stock dividends as income is improper not only under f iduciary accounting
standards but under the express direction of Decedent's Will. Furthermore the
distribution of these stock dividends by the Marital Trust as an income item
directly to BARBARA McK. MUMMA appears to have been designed to
circumvent the standards for principal distributions from the Marital Trust(health,
support etc and a "deficiency in other available funds"}at a rime when BARBARA
McK. MUMMA had already exhausted her 5°r6 annual right to principal
withdrawal which does not require such a standard.
IV. THE ACCOUNT AS FILED FAILS TO ADEQUATELY EXPLAIN OR
DOCUMENT SIGNIFICANT CHANGES IN CERTAIN MA�OR
INVESTMENT HOLDINGS OF THE ESTATE.
A.) One of the primary assets o�the Decedent's estate was listed as 700
shares of Pennsylvania Supply Company,a closely-held Mumma family
corporation,which shares are reported on the Account with a fiduciary
, I
.
Miller Lipsitt,LLC
May 25,2004
Page 11 of 25 �
acquisition/carrying value of$9,144,473.00. According to the Account as filed,
Decedent's shares of Penrisylvania Supply Company were liquidated on or about
December 19,1986. (See Vol l,Page 15)
; Although it is not clear from the Account as filed,apparentiy Decedent's
. shares of Pennsylvania Supply Company were ultimately exchanged for other
investments including: (i) an unknown number of shares of Hummelstown
Quarries, Inc. (with a reported Inventory Value of$593,421.04); (ii) an unknown
number of shares of Nine Ninety Nine,Inc(with a reported Invernory ijalue of
$2,495,6b5.85); (iii} an unknown number of shares of Union Quarries, Inc. (with a
reported Inventory Value of$1,050,000.00);(iv) an unspecified interest in a
certain real estate listed as Mumma Realty Associates I (with a reported
combined Inventory Value in excess of$3,745,211.80);and (v)an unspecified
interest in certain real estate listed as Mumma Realty Associates II (with a
reported combined Inventory Value in excess of$848,213.85). (See VoI 1,Page 16
&Page 118).
The Account as filed is fails to pro��ide any concise or detailed information
relating to the exchange of the shares of Pennsylvania Supply Company for the
various above-referenced assets including any explanation of for assignment of
carrying values. The Account as filed reports alleged capital gains on alleged
distributions of the shares of Hummelstown Quarries, Inc,Nine Ninety Nine,Inc
and Union Quarries, Inc but there no way to determine or verify the capital gains
as there is no explanation of Inventory values for those shares as Iisted in the
Estate accounting.
Other assets appear and disappear on the A�count�s if by magic. For
exampie,the Account shows$4$7,771.43 of capital gains on July 21,1993 on the
sale of the `Paxton Street Yards',yet where this asset came from and the nature of
this asset is never explained.
. , '
Miller Lipsitt,LLC
May 25,2004
Page 12 of 25
This lack of concise and detailed information relating to the exchange of
the shares of Pennsylvania Supply Company and the acquisition of substituted
assets is directly contrary to the mandate of the Fiducia.ry Accounting Standazds
as set forth in the Pennsylvania 4rphans Court Rules:
A second schedule(entitied"Chctnges in lnveshnent Holdirtgs")s��ould slwu�aii
transactions affecting a pnrti.cular securihj lioiding saccli as purcluise of ndditional sl�ares,
pnrtial sntes,stock splits,clucnge of corporate nc�me, divestment distrtbutions,etc. This
schedute, sinrilar to a Iedger account fior each holding,will reconcile opening and ciosing
entries for pnrticuic�r lioldings,explain cltanges in carr�,/ing vatue nnd avoid extensiue
searches through fhe acc�unt for inforrnntion scatter�d arnon�vtl�r scytedules.
(Emphasis Supplied).
It appears that much of the Estate Account as well as the Marital Trust
Account were prepared by Hadley &Company of Buffalo New York (who had
served as the Decedent's accountants before his death). Since Hadley in not in
Pennsylvania,this may partially explain the failures of the accountings to comply
with the express mandates of the Fiduciary Accounting Standards in the
Pennsylvania Orphans Court rules however this should not excuse attorneys
Morgan, Lewis and Bockius which seems to have taken Hadley's various
accountings and simply added front cover pages and ending verifications.
B.} The lack of proper accounti.ng for the exchange of the shares of
Pennsylvania Supply Company has makes it impossible to adequately determine
if there are any capital gains on the exchange of the Pennsylvania Supply
Company shares or�f there has been subsequent appreciation in the value of the
assets which were received in the exchange.
To the extent that the Estate has capital gains on the ex�hange of the
shares of Pennsylvania Supply Company, or has had subsequent appreciation in
the vaiue of the assets received for the shares of Pennsylvania Supply Company,
then the Account as filed has improperly allocated such capital gains and
subsequent increases in value of those exchanged assets to the Marital Trust.
Under Althouse Estate,404 Pa. 412, 172 A.2d 146 (1961) in those instances where
. ' , '
Miller Lipsitt, LLC
May 25, 2004
Page 13 of 25
there is a pecuniary formula Marital Trust all capitai gains as well ali increases in
the value of any estate assets which occur during administration must be
allocated solely to the Residuary Trust.
V. LIQUIDATION UF THE PENNSYLVANIA SUPPLY COMPANY
STOCK WAS CONTRARY TO THE EXPRESS WISHES OF THE DECEDENT
AND APPEAItS TO HAVE BEEN UNNECESSARY.
A,) The express wishes of the Deceden�with regard to his holdings in
private family held corporations are contained in Paragraph Thirteen of his VV'ill:
TNIRTEENTH: Notzuitl:standing the pozuers herein othenvise given,I direct thaf m�
stock iri privntety held corporntions, supervised r�nd rtdrninistered by nre rrs tl�e Executive or
operating offtcer prior to ri��decease,or m�stock rn privntei�held corp�rntions tvhich otlienc�ise
is owned by rne at my decease,be not sold unless all of rn�trustees and parficularty rny
individual trustee or trustees,sfrr�ll crgree in turit�rcg thnt such stock slurll be sold. It is m�desire
tha#if expedient and possibie, the businesses zvhich I have personaily directed during my IifeNme
and of zvlticlt I luive Itad an interest be cortti.nued for the herieftt of and under tl�e mnnagement and
con trol of m�fnmii�.
According to Decedent's Federal Estate Tax Retuxn as f iled,Decedent's
total gross estate was valued at$16,645,786.00. Decedent's shares of
Pennsylvania Supply Company stock were included at a value of 9,144,473.00. In
other words,even with the$861,018.00 of nonprobate property removed from
the Federal Estate Tax return calculations,Decedent's Estate had$6,640,295 in
assets other than the Pennsylvania Supply Company stock. Most of these other
assets were fairly liquid and/or income producing.
According to Decedent's Federal Estate Tax Return as filed,Funeral and
Estate Administration Expenses amounted to 5b0,040.00, and Decedent's
Debts/Mortgages amounted to$4,614,191.00. Federal Estate taxes payable were
$42,695.00;Pennsylvania lnheritance Tax was$617,480.00. The total of expenses
and inheritance/estate taxes payable by the Estate was$5,834,406.00.
, • �
Miller Lipsitt, LLC
May 25,2004
Page I4 of 25
Other Assets Available $6,640,295.00
Estate Expenses/Taxes _�5,834�406.00,�
Balance Available $ 805,889.00
As the above calculations demonstrate, there was no necessity from an
estate administrarion standpoint for the liquidation of the Pennsylvania Supply
Cornpany stock. At the time that the Per�nsylvania Supply Company stock was
Iiquidated, the surviving spouse, BARBARA McK. MUMMA and each of
Decedent's four children, ROBERT M. MUMMA II, BARBARA M, McCLURE,
LINDA M. ROTH,and LISA M. MORGAN,all had significant personal assets
and/or incorne from other sources. There simply were no compelling reasons
for the Estate's liquidation of the Pennsylvania Supply Company stock.
B.) It appears that liquidation of the Pennsylvania Supply Company
stock was part of a comrnon plan or scheme by the Co-executrices, BARBARA
McK. MUI��INiA and LISA A. MORGAN,to vest blocks of certain stock of
subsidiary corporations of Pennsylvania Supply Company unto BARBARA McK.
MUMMA free of trust. By moving a significant percentage of these shares
outside of the Estate,BARBARA McK. 1��UMMA could help guide a sale to
; buyer CRH if problems or objections should be raised. CRH was not certain that
the Co-executrices had the authority to sell and wanted indemnification in case
the sale be challenged. (See Stradley, Ronon,Stevens&Young Memo dated
04/27/89).
(1) In December 1987 the Co-executrices,caused the Estate to
Transfer to the Marital Trust property having a value of$6,289,808.85
inciuding 615 shares of Hummelstown Quarries,Inc.; 50 shares of Union
Quarries,Inc.;653.5870 sl�ares (Common)of Nine Ninety Nine, Inc.; and
829.2340 shares (10% Preferred} of Nine Ninety Nine, Inc(hereinaf ter
� �
Miller Lipsitt, LLC
May 25,2004
Page 15 of ZS
collectively referred to as the"Transferred Stock"). The above referenced
shares of the Transferred Stock were received by the Estate as part of the
liquidation of the Pennsylvania Supply Company stock.
(2) The allocation of the aforesaid shares of the Transferred
Stock to the Marital Trust is not a decision that a reasonably prudent
fiduciary would have made. By allocating the Transferred Stock(instead
of cash)to the pecuniary formula Mazital Trust, the Estate was needlessly
forced to incur capital gains of$1,170.687.90 resulting in the payment of
over$360,000.00 in federal and state fiduciary income taxes. Had the Co-
executrices allocated the Transferred Stock to the Residuary Trust,such
allocation would not have resulted in the payment of any fiduciary
income taxes.
(3) The Martial Trust grants to BARBARA McK. MUMMA a
discretionary,non-cumulative, arulual right of withdrawal of up to five
(5%)percent of any then existing principal of the Marital Trust. No such
withdrawal rights are contained in the Residuary Trust.
(4) Although the withdrawal rights granted to BARBARA McK.
MUMMA do not vest her with a right to select individual assets of the
Marital Trust to fund the withdrawals,beginrung in 1987 and connnually
annually up through 1993 BARBARA McK. MUMMA systemarically
exercised her 5% withdrawal rights under the Martial Trust to convey
various shares of Hummelstown Quarries, Inc. and Nine Ninety Nine,Inc.
(both common and preferred) to herself individually. 4nce the sale to
CRH was completed BARBARA McK. MUMMA stopped exercising her
withdrawal rights.
(5) It does not appear that the systematic withdrawal of the
shares of Hummelstown Quarries,Inc. and Nine Ninety Nine,Inc (both
common and preferred) by BARBARA McK. MUMMA from the Marital
I � •
Miller Lipsitt,LLC
May 25,2004
Page 16 of 25
Trust was financially motivated. During the period from 1987 through
1993 while she was making said systemati�withdrawals of shares of
Hummelstown Quarries, Inc. and Nine Ninety Nine, Inc(both common
and preferred) into her own name,BARBARA McK. MUMMA did not
withdraw from the Marital Trust the over One Million{$1,000,000.00)
Dollars in accumulated income which was available for distribution to her
under the express terms of the Marital Trust.
C. According to the Accountings, the Marital Trust liquidated its stock
holdings in both Hummelstown Quarries, Inc. and Nine Ninety Nine Inc.
: (Common) on or about July 21, 1993. According to Robert M. Mumma II,
BARBARA McK. 1��IUMMA Iiquidated her personally owned shares in
Hummelstown Quarries, Inc and Nine Ninety Nine, Inc. {Common} on or about
July 21,1993 as part of the same transaction as the sale of shares of Hummelstown
Quarries, Inc. and Nine Ninety Nine,Inc. by the Marital Trust.
VI. THE CO-EXECUTRiCES OF THE ESTATE FAILED TO
PRESERVE ASSETS CONTAINED IN DECEDENT'S SAFETY DEPOSTT B4X
' 3332 AT THE DAUPHIN DEPOSIT BANK AT THE TIME 4F HIS DEATH
AND/OR FAILED TO ADEQUATELY INVESTIGATE THE
DISAPPEA►RANCE OF DECEDENT'S ASSETS CONTAINED IN SAID
SAFETY DEPOSIT BOX.
A.) On the date of his death Decedent was the joint owner(with
Robert M. Mumma II) of Safe Deposit Box 33321ocated at the Dauphin Deposit
Bank and Trust Company in Harrisburg,Pennsylvania (hereinafter"SDB 3332").
This was the lazgest safe deposit box that Dauphin Deposit rented and was the
size of a small foot locker.
� • • -
Miller Lipsitt, LLC
May 25,2004
Page l 7 of 25
B.) In August of 1985 ROBERT M. MUMMA,II and his father
inventoried the contents of SDB 3332. This August 1985 visit was the tast time
that SDB 3332 w1s entered prior to Decedent's death. At the time of this August
1985 inventory SDB 3332 contained various assets belonging to or titled in the
name of the Decedent,including his share certificates for Pennsylvania Supply
Company(and its subsidiaries)as well as corporate records and shareholder
agreements relating to Decedent's Pennsylvania Supply Company stock.
C:.) On April 23, 1986,eleven days after Decedent's death, Rt?BERT M.
MUMMA, II and his mother, BARBARA McK. 1��iUMMA, entered SDB 3332 to
recover Decedent's will. At the time of recovery of Decedent's will Objector saw
various assets owned by the Decedent as well as the Pennsylvania Supply
Company corporate records and shareholder agreements referred to in
Subparagraph B above present in SDB 3332. ROBERT M. MUMMA II and
BARBARA McK. MUMMA were informed at this time that SDB 3332 would be
sealed pending inventory by the Pennsylvania Department Of Revenue.
D.) 4n November 2, 1989 a formal inventory of SDB 3332 by an
officer of the Pennsylvania Departrnent of Revenue in the presence of BARBARA
McK. MUMMA revealed only personal papers and letters of the Decedent;
neither Decedent's shares or other assets nor any corporate records or
shareholders agreements relating to the Pennsylvania Supply Company were
present.
E.) The Co-executrices of the Estate have failed to properly investigate
and/or pursue responsible parties for the loss of Decedent's assets in SDB3332.
F.) According to ROBERT M. MUMMA, II the missing corporate
records of Pennsylvania Supply Company contained shareholders buy/sell
agreements which{a}would have limited the value of the Pennsyivania Supply
: Company stock and (b) given ROBERT M. 1��UMMA II and the other children
who were the remaining shareholders of Pennsylvania Supply Company either
. . �
Miller Lipsitt,LLC
May 25,2004
Page 18 of 25
the right of first refusal to purchase said shares of Pennsyivania Company Stock
or to have Pennsylvania Supply Compan�►itself re-purchase its own stock which
would increase the value of the remaining outstanding shares in the hands of the
family mernbers including ROBERT M. MUUMMA, II.
G.) ROBERT M. MLJMMA II beIieves that the Co-executrices of the
Estate are either responsible for or complicit in the disappearance of the
corporate records of the Pennsylvania Supply Company as well as other items
from SDB 3332.
H.) I note that unlike R�BERT M. MUMMA II the Co-executrices of the
Estate have not instituted any formal legal action against Dauphin Deposit with
regazd to the estate losses from SDB 3332. ROBERT M. 1��fUMMA II filed his
own action against Dauphin Deposit after a certificate for 314 shares of 999, Inc.
(a subsidiary company of the Pennsylvania Supply Company)which was issued
solely in ROBERT M. MUMMA II'S own name and which ROBERT M. MUMMA
II believed might have been contained in SDB 3332 turned up in the offices of
legal counsel for CRH in San Francisco as part of CRH's due diligence for its
purchase of the Pennsylvania Supply Company.
I) In reviewing the extensive dis�overy in Mumma's on-going action
against Dauphin Deposit, it appears that no one disputes that various corporate
records, including those of Pennsylvania Supply Company, are"missing".
BARABRA McK. MUMMA admits is her deposition(PP 84-91) that there were
more items in SDB 3332 when the will search was perforrned then when the
inventory and closeout of the box occurred. Form REV 485 which is the
. inventory of Box 3332 on file with the Peruisylvania Department of Revenue
,
states the box had "no items of value". Apparently the Estate's attitude is that
the missing documents simply cannot be located.
J.) Shareholders Agreements of the type described by ROBERT M.
MUMMA Ii as having been in existence for the Pennsylvania Supply Company
. ,
+ .
Miller Lipsitt,LLC
May 25,2004
Page 19 of 25
are a widely accepted and effective tool to limit the value of closely held stock
upon the death of a shareholder. �ne would have expected there to be such an
agreement with respect to the shares of Pennsylvania Supply Company,
especially considering the value of the enterprise and the express desire of the
Decedent's Will that his closely held businesses not be sold. Since the Co-
Executrices desired to and subsequently did sell certain portions of the
Pennsylvania Supply Company over the objections of ROBERT M.MUMMA,
the disappeazance of a Sharehoider's�greement which would have effectively
blocked this sale and the failure of the Co-executrices to aggressively pursue the
agreement's disappearance in my opinion raises an irreconcilable conflict of
interest.
VII. CDUNSEL FEES TO M�RGAN,LEWIS & BOCKIUS
The Estate Account as filed show that for the period 1986 to 2003
Decedent's Estate paid Morgan Lewis and Bockius (hereinafter"MLB")attorney
fees for representing the Estate totaling$�14,587.58. The Marital Trust
Accountings as filed show that for the period from 1986 to 2003 the Maritai Trust
has paid Mt,B attorney fees for representing the Martial Trust totaling
$1,511,417.70. Together the fees to MLB total$1,62b,005.30. I am of the opinion
that a portion of the total counsel fees paid by the Estate and the Marital Trust to
MLB should be disallowed for the following reasons:
(1) Neither the nature of the services rendered,the amounts
charged for those services,nor the necessity for such services
are enumerated in either the Estate Account or the Trust
Accounhngs;
(2) The amounts paid by the Marital Trust are grossly excessive;
• ,
. .
Miller Lipsitt, LLC
May 25,2004
Page 20 of 25
(3) Co-executrix, Lisa M. Morgan was a member of MLB;
Decedent's wiil does not contain any provision authorizing
the executrices or the trustees to hire or retain themselves;
(4) MLB preparation of the Estate Accounting was not in
accordance with Decedent's will and applicable law as
evidenced above;
(5) MLB breached its duties to the residuary benef iciaries of
both the Mamal and R�siduary tru�ts by failing to act
impartially for the benefit of all beneficiaries and instead
aligning itself with BARBARA McK. MUMMA in her plan or
scheme to liquidate the Pennsylvania Supply Company and
failing to prevent BARBARA McK. MUMMA from
improperly diverting funds from the Estate.
(6) A portion of the MLB fees were personal expenses of the Co-
executrices and Co-Trustees including as part of their
personal scheme to"squeeze out" RQBERT M. MUMMA
II'S interests in certain family corporations. (See Stradley,
Ronan,Stevens 8�Young Memo dated 04/27/89}.
VIII. ATTOItNEY FEES PAID BY THE MARITAL TRUST TO
STRADLEY,RONON,STEVENS &YOUNG
It is my opinion that a portion of the attorney fees paid by the Marital
Trust to Stradley,Ronon,Stevens &Young were personai expenses of the Co-
Trustees as part of their personal scheme to"squeeze out" ROBERT M.
MUMMMA II's interests in certain family corporations and therefore are not
proper expenses of the Marital Trust. (See Stradley, Ronon,Stevens&Young
Memo dated 04/27/89).
� .
. •
Miller Lipsitt,LLC
May 25,2004
Page 21 of 25
UC. CONCLUSIONSjIZECOMMENDATI4NS
A.) THE COURT SHOULD ORDER THE REMOVAL OF BARBAItA
McK. MUMMA AND LISA M. MORGAN AS CO-EXCUTRICES OF THE
ESTATE AND AS CO-TRUSTEES OF BOTH THE MARITAL AND
RESIDUARY TRUSTS AND APPOINT AN INDPENDENT PARTY TO ACT
IN THEIR PLACE AND STEAD.
1.) The accountings for the Estate,the Mazital Trust,and the Residuary
Trust will need to be substantially redone:
a.} The principal amount awarded to the Marital Trust under
the Account as filed does not comply with the pecuniary formuia
set forth in Decedent's Will.
b.) Income earned by the Estate during administration has not
been properly allocated to the Residuary Trust.
c.) Capital gains earned by the Estate during adrrunistration
have not been properly ailocated to the Residuary Trust.
d.) Significant changes in major investment holdings have not
been documented and accounted in accordance with the Fiduciary
Accounting Standards in the Pennsylvania Orphans Court Rules.
e.) The unauthorized income distributions frorn the Estate
directly to BARBARA McK.MUMMA need to be reversed.
: f.) The items of principal and capital gains which were
transferred to BARBARA McK. MUIVIMA need to be reversed.
2.) The general intent of the pecuniary formula marital /residual trust
combination as found in Decedent's Wi�l is to put a minimal fixed amount in the
marital trust portion with everything else over into the residuary trust-with the
. �� .
• i
Miller Lipsitt, LLC
May 25,2004
Page 22 of 25
Residuary Trust being the predominant recipient. However the various
accountings as filed by the current fiduciazies have effectively reversed this
intent and instead have favored the Marita!Trust over the Residuary Trust.
a.) By December 31, 1987 the fiduciaries has assigned assets to
the Marital Trust- primarily stock of the subsidiary corporations of
the Perulsylvania Supply Company that the fiduciaries wished to
sell to CRH-totaling$6,287,308.65,. However no significant assets
were assigned to the Residuary Trust until over 14 years later in
2002-2003 when the Residuary Trust received$3,68b,315.38 of
comprising those assets which the Estate at that time had Ieft
,
remaining.
b.} The Will of the Decedent did not authorize the sort of
'cherry picking' of assets between the Marital and the Residuary
Trust which occurred under the accounts as filed. Generally in the
absence of an express direction in the Will,both the Marital and
Residuary Trusts are to be awarded a proportionate share of each
of the assets.
c.) It appears that the'cherry picking' and transfer of assets by
the fiduciaries of the Estate to the Marital Trust was part of a
common plan or scheme to vest a block of the stock of certain
subsidiary corporations of Pennsylvania Supply Company unto
BARBARA McK. MUMMA free of trust.
d.} BARBARA McK. MUMMA had an annual five(5%) percent
principal withdrawai right trom the Marital Trust which right was
not containeci in the Residuary Trust. These withdrawal rights
were used solely upon the stocks in question. After the sale to
CRH,BARBARA McK. Mt1MMA stopped exercising her rights o#
withdrawal. During the time that these principaI withdrawal
. • .
. •
' Miller Lipsitt, LLC
May 25,2004
Page 23 of 25
` rights were being exercised BARBRA McK. MUMMA had available
to her over One Million($1,000,�00.00) Dollars of Marital Trust
income which she could have requested from the Marital Trust yet
she did not do so.
e.} This'cherry picking' of assets caused the Estate to incur in
excess of$360,000.00 in federal and Pennsylvania fiduciary income
taxes all or a significant portion of which income taxes could have
been avoided. T'�Ze fiduciaries should be surcharged for the Estate's
payment of these unnecessary fiduciary income taxes.
3.) The standard for trust fiduciaries dealing with successive interests
has remained unchanged since its originai promulgation in Section 232 of the
Restatement of Trusts(1935):
"ET�o deal impartiaity as betzc�een the successive benefcciaries and to nct zvith due
regard to their respective interests."
Under the express terms of Decedent's WiII,all disiributions of principal
= to BARBARA McK. MUMMA from either the Marital or the Residuary Trust
{other than the aforesaid 5°� withdrawal right) are subject not only to the rather
traditional health,maintenance etc. standard but also to the exp�ess requirement
that BARBARA McK. MUMMA have"a deficiency in other available funds"
available to her. This indicates the Decedent's clear irnent that the principal of
both the Marital and Residuary trusts is not be invaded unless absolutely
necessary -in order to preserve funds for the residuary beneficiaries.
Given the repeated instances where the trust fiduciaries have ignored the
express directions of Decedent's Will and have manipulated the Marital Trust for
their own gains, they have repeatedly demonstrated their inabiiity to act wi�h
impartiality to the residuary beneficiaries. I therefore believe that BARBARA
,
� ��
Miller Lipsitt, LLC
May 25,2004
Page 24 of 25
3
McK. MUMMA and LISA M. MORGAN should be removed as ca-executrices of
the Estate and co-trustees of both the Marital and Residuary Trusts with an
independent fiduciary appointed in their place and stead.
B. THE SALE TO C1tH NEEDS TO BE VOIDED BY THE CDURT
ALONG WITH A COURT ORDERED�N INVESTIGATION ORDERED
INTO THE DISAPPEAItANCE OF DECEDENT'S MISSING ASSETS AND
PAPERS
1.} Although the I�eceder�t's express wishes were that his fa�nily
corporations not be sold, it appears that sale of a major portion of the assets of
the Pennsylvania Supply Company became an almost immediate goal of the Co-
Executrices soon after their appointment. Since Decedent's Estate h�d more
_ than enough assets to satisfy creditors and pay applicaUle Federal Estate and
Pennsylvania lnheritance Taxes without the sale of any portion of the
Pennsylvania Supply Company assets,the motives behind the sale are clearly
suspect.
2.} I am particularly disturbed by th.e sequence of events surrounding
Decedent's missing assets and papers which were contained in Decedent's Safe
Deposit Box 3332 at the Dauphin Deposit Bank. As BARBARA McK. MUMMA
admitted in her deposition, there were a lot more items contained SDB3332 at the
time she conducted the Will search then ti►hen she closed this safety deposit box.
As SDB3332 was held jointly by the Decedent and his son ROBERT M. MUMMA
II, no one should have been permitted to enter or close SDB3332 without the
physical presence of ROBERT M. MUMMMA II. Since the representatives of the
Estate were pushing for a sale of the Pennsylvania Supply Company assets to
CRH and ROBERT M. MUMMA II was opposing such a sale, the loss(or rather
failure to find) the shareholders agreement which ROBERT M. MUMMA II
claims existed and which he indicated would have prevented the proposed sale
` • � � .I
Miller Lipsitt, LLC
May 25,2004
Page 25 of 25
to CRH the conduct of the representative of the Estate demands an independent
and irnpartial court ordered investigation.
C. THE CONDUCT OF MORGAN,LEWIS AND
BOCKIUS/STRADLEY,RUNON,STEVENS AND YDUNG
An attorney that serves as counsel to an estate or trust owes a duty to see
that the administration s�f the estate and/or trust protects the int�rest of all wha
share in the estate or the trust(creditors,fiduciaries,present as well as future
beneficiaries). As the memo from David Landrey of Stradley. Ronon,Stevens
and Young dated 04/27/1989 makes cleaz both Morgan,Lewis and Bockius and
Stradley,Ronon,Stevens and Young seemed more concerned with the sale of
assets to CRH and"squeezing out" ROBERT M. MUMMA II's shares then they
were in protecting his interests as a beneficiary of both the Marital and Residuary
Trusts. This is exactly the sort of conduct which reinforces the negative
connotations that so many have of our profession. As a result of their conauct,I
believe that compensation to both firms for their services which were paid from
the Marital Trust should be denied by the Court.
- ,
�
' ;
. ' // : �/
� - �% �-
,
r �
�"�
Jon an M. Crist,J.D.,LLD (Taxation)
�� _�� r/
CIRRICULUM VITAE FOR
JONATHAN M. CRtST
Education
St. Bonaventure University Grad: May 19T2
St. Bonaventure, N.Y. B.S (Bus Admin)
Cum Laude
Dickinson School of Law Grad: June 1979
Carliste, PA. Juris Doctor
: Temple University Grad: May 1983
' Philadelphia, PA. L.L.M. (Taxation)
EmploymenUWork Historv Professional Associations
Solo Practice American Bar Association
' 226 West Chocolate Ave. Pennsylvania Bar Association
Hershey, PA. 17033 �auphin County Bar Association
(Mar 2004 through Present)
Latsha, Davis &Yohe� P.C.
Mechanicsburg, PA. 17055
Senior Associate
(Mar 1999—Mar 2004)
Solo Practice
226 West Chocolate Ave.
Hershey, PA. 17033
(Oct 1992-Mar 1999)
Partner
, Hedger�Hedger
801 E. Park Drive
Harrisburg,PA 17111
(Sept 1989—Oct 1992)
Skarlatos&Zonarich
Harrisburg, PA
Associate(May 1983-Sept 1989)
Beckley�Madden
Ha�risburg, PA.
Associate(Sept 1979- May 1983j
Admitted To Practice Before
Pennsylvania Supreme Court(1979}
US District Court—Middle District of Pennsylvania(1979)
US Tax Court(1983)
US Supreme Court(1985)
: LL 7'
Obiections to Conclusion of Law
Objector Robert M. Mumma, II objects to the conclusions of law
1 . The estate value was determined by George Hadley. He originally
reported value of $5-6 million to the beneficiaries. MLB increased
that in july 1987 to $17,000,000. In September of 1988 the
executrix were aware the value was in excess of $60,000,000.
The CRH offer (01 -42) supports this objection.
Undervaluing the assets was designed to allow the executrix to
cram more into the Martial trust as part of a scheme to sell the
Pennsy Supply Inc businesses and take the profits out through the
Marital Trust. The executors lumped all of the Quarry and building
material assets into a block knowing they wanted to sell it.
2. The executrix elected to calculate this amount using the old
formula and not the new transitional formula. This was provided by
reviewing the filed tax return. 0 page 3 line 15 the elected to not
use the transitional method.
3. See Christ report
4. It is a pecuniary trustand had a maximum dollar amount of
contribution. Only 5% of the remaining principal could be scooped
out annually. The trustees allowed distributions far in excess of this
amount bu undervaluing the distributed asset. .
17 actually decedent did not own shares in PSI, Bobali,NNN. The shares
of PSC and LRI were not properly handled and violated the intention of
the will.
18.The High Spec agreement does not allow transfers to an estate
except with the written permission of all the shareholders. They never
had this permission. I agree this action was anything but proper.
20. The value of Pennsylvania Supply Company was based on the
underlying value of it's subsidiaries. These were not based on intrinsic
values including the Mineral reserves but soley on multiples of recent
years profits. This is not the industry standard.
22 The executors caused corporate assets primarily cash to be
transferred to the estate and then to the executor. This cah wa not
replenished before the liquidation of PSC and Kim Cc.
23.This matter is subject to another forum.
24Hummelstown Quarries did not have a meeting on Dec 19, in
Harrisburg. It di not elect directors r officers. The existence of HQI
was kept secret from me so I would support the plan of liquidation and
continue to expect that the quarry properties were being transferred
to the shareholders. They also concealed the books records and
agreements belonging to Pennsy Supply Inc.
27. 28. 29. The corporate records we were able to produce regarding
thes matters confirm that no such aactions were approved . In order
to sell real estate and other titled assets they adopted positions not
approved by the shareholders. These include Chairman of the Board.
Chief Counsel, salaries for Lisa.
30 They did not account for the change in value of the assets to be
sold to CRH to reflect the true market value to the IRS
31 .32.33. These issues of where the money went, and who has
benefitted are still to be accounted for with the final distribution of all
Trust assets and the final accounting.
34.35.36.37.The final results of the distributions will determine the
propriety of the advice.
38.There was no accounting for the decedents Swiss Bank account at
the UBS bank, or his Chase Account in London.
39. These documents and files for businesses e was involved in were
not produced. That includes files for High Spec Lebanon Rock among
others.
40. Thhe only considered one offer. There were at least 5 other
interested partys that were not allowed to bid.
5. The failure to revalue the stock before distribution was improper
accounting.
6. No Estate income was allowed to be distributed to Barbara
McKimmie Mumma.
7. Equity 66 did not relate to the December 29, agreement. The
agreement was never produced to the four mumma shareholder by
the Estate. Thus it was not a subject of the case. This was a clear �
obstruction of justice.
8. All capital gains and extate income were to go to the residuary
trust. See Crist report.
9. The account itself shows when and what was fund to the Trusts
and Estate.
10.The Fulton Bank Building was not income. It was principal and
should not have been distributed except as part of the scoop out 5%
1 1 .They undervalued it as an asset.
12. 13. These properties supported the values of the aggregate
operations. They were not valued for the mineral reserves that were
in the millions of available reserves.
14. The executors transferred Union Quarries stock fro a trustfor kim
Company to the Marital trust without any authority.
15. This is clear from the Lebanon Rock, high Spec aNine Ninety
nine/Pennsy Supply Inc and Middlepark trans actions they participated
in.
16. The executors failure to abide by the agreements violated the
desires of Robert M. Mumma that the businesses continue under the
control ofhis immediate family
41 . It is clear that the plan for Walter and Robert Mumma was to have
the businesses remain in the family. The rush to cash out and move to
Florida was nothing but an exercise of greed on part of the executors.
It certainly was not beneficial for the other family members who were
never allowed to participate after Dad died and will probably not
participate in any distribution.
I object to all of the remaining conclusions.