HomeMy WebLinkAbout03-12-14 (2) P
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WILLIAMS COLTLSON, LLC
Richard F. Rinaldo (I.D. No. 33222) �
16th Floor, One Gateway Center �� � �t�
420 Fort Du uesne Blvd. `T`�' o �-'��
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Pittsburgh, PA 15222 ��r . �, , .`,
412-454-0259 (rrinaldo@williamscoulson.com) ��` ,�., _ -
Attorneys for Defendant Barbara M. Mumma �.-`-z�-� o � �r�
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IN RE: : IN THE COURT OF COMMON
: PLEAS OF CUMBERLAND
Estate of Robert M. Mumma, Deceased : COUNTY, PENNSYLVANIA
: No. 21-86-398
:
: Orphans' Court Division
PETITION OF BARBARA M. MUMMA FOR PARTIAL IMMEDIATE
IN-KIND DISTRIBUTION FROM RESIDUARY TRUST
OR, IN THE ALTERNATIVE,
TO DECLARE AND DETERMINE VOTING RIGHTS IN CERTAIN
SHARES OF STOCK OF BOBALI CORPORATION CURRENTLY HELD
IN THE RESIDUARY TRUST CREATED PURSUANT TO THE LAST
WILL AND TESTAMENT OF ROBERT M. MUMMA, DECEASED
Barbara M. Mumma, by her attorneys, Williams Coulson, LLC, hereby
petitions this Court for an Order directing the immediate in-kind distribution of
certain assets from the Residuary Trust created pursuant to the last will and
testament of Robert M. Mumma, deceased, a copy of which is attached hereto as
Exhibit A (the "Will"). In the alternative, Barbara M. Mumma hereby petitions this
Court for an Order declaring and determining voting rights in the shares of stock of
Bobali Corporation currently held in the Residuary Trust. In support of this
Petition, Barbara M. Mumma respectfully states as follows:
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1. Petitioner is Barbara M. Mumma, who, with Lisa M. Morgan, Linda
Mumma and Robert M. Mumma II, are the beneficiaries and remaindermen of the
Residuary Trust.
2. Respondent is Lisa M. Morgan ("Ms. Morgan"), who is the sole
Trustee of the Residuary Trust.
3. Robert M. Mumma died on April 12, 1986.
4. The widow of decedent, Barbara McK. Mumma (Mrs. Mumma"), was
named, along with Ms. Morgan, Co-Executrix of the Estate and Co-Trustee of the
Marital and Residuary Trusts created under the last will and testament of Robert
M. Mumma.
5. Mrs. Mumma died on July 17, 2010.
6. Thereafter, Barbara M. Mumma was duly appointed as a co-executrix
of the estate pursuant to the First Codicil to the Will, which also is attached as a
part of E�ibit A hereto.
7. Since the appointment of Barbara M. Mumma as co-executrix, Ms.
Morgan, the other co-executrix, has ignored Barbara M. Mumma's appointment as
co-executrix, has from time to time asserted that the estate is closed with the death
of Mrs. Mumma in 2010 and has taken the position that Ms. Morgan, as the sole
Trustee of the Residuary Trust, has no duty or obligation to Barbara M. Mumma to
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provide her with any documents or information or to cooperate in any way with
Barbara M. Mumma with respect to this Estate.
8. For purposes of this Petition, it is not necessary to recount in detail the
complex procedural history of this matter. The relevant procedural status of this
matter is the following:
a. By a report docketed August 7, 2013, approximately two years
after the conclusion of the hearings on the objections filed in this matter, Auditor
James Buckley, Esquire recommended to this Court that the objections be
overruled. Mr. Buckley then resigned as Auditor.
b. Objections to the Auditor's Report and Recommendation were
filed by Barbara M. Mumma, by Robert M. Mumma II and by Ms. Morgan herself
on or before November 7, 2013 in accordance with the schedule for the filing of
briefs in support of objections established by this Court.
c. This Court has heard argument on the Objections to the
Auditor's Report but has not yet ruled on the matter.
9. Among the assets of the Residuary Trust are certain shares of stock in
Bobali Corporation.
10. According to the "Account of the Residual Trust under the Will of
Robert M. Mumma, Deceased" for the period July 18, 2010 to December 31, 2012
filed by Ms. Morgan as Trustee with this Court on September 6, 2013, a total of
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1.401 shares of stock appear on page 4 of the Account (mis-titled as shares of
"Bobali Inc.") and are valued at $32,971.64.1
11. Under the terms of the Will,
Upon the death of my said wife, the principal of this trust, as it
is then constituted, . . . shall be paid over by my surviving
trustee . . . unto my children, ROBERT M. MUMMA, II,
BARBARA M. McCLURE (now Barbara M. Mumma),
LINDA M. ROTH (now Linda M. Mumma) and LISA M.
MUMMA (now Lisa M. Morgan), share and share alike, per
stirpes and not per capita.
Exhibit A, at Article Eighth, ¶ 2, page 4 (emphasis added).
12. Pursuant to the terms of the Will as set forth above, on the death of
Mrs. Mumma on July 17, 2010 the principal of the Trust, as it was then constituted,
was to have been paid over to the four beneficiaries of the Trust in equal shares.
13. More than three years later, the Trustee still has not distributed the
assets of the Trust.
14. Although Barbara M. Mumma believes that under the clear terms of
the Will the assets of the Trust should have been distributed long before now, for
purposes of this Petition Barbara M. Mumma seeks much more limited relief,
1 In fact, this number of shares is slightly inaccurate. Ms. Morgan has argued in
other litigation in Dauphin County that the Residuary Trust holds 1.4044 shares of
stock in Bobali Corporation, and the Court of Common Pleas of Dauphin County,
per Bratton, J., recently so ruled with respect to the number of shares in the
Residuary Trust following trial of the matter in Dauphin County. The difference,
however, is not material for purposes of this petition.
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requesting that this Court direct the immediate distribution of the 1.4044 shares of
stock in Bobali Corporation currently being held in the Residuary Trust.
15. Barbara M. Mumma seeks this immediate distribution because the
Bobali stock held in the Residuary Trust has been at the center of a major dispute
in the Court of Common Pleas of Dauphin County in a pending lawsuit captioned
Lisa Morgan, individually and in her capacity as Executor of the Estate of Barbara
McKimmie Mumma and Trustee of the Residuary Trust of Robert M. Mumma, Sr.,
Plaintiff v. Robert M. Mumma II, Barbara M. Mumma and Linda M. Mumma,
Defendants, and Bobali Corporation, Nominal Defendant, No. 2010-CV-11490-
EQ (C.P. Dauphin Co.), in which Ms. Morgan, claiming that the shareholders of
Bobali Corporation had been unable to act for years and owes money for unpaid
real estate taxes, requested that the Court of Common Pleas of Dauphin County
appoint a custodian or a liquidating receiver for the corporation. Barbara M.
Mumma, and others, have objected to Ms. Morgan's attempt to liquidate this
family-held corporation. The result was a multi-day nonjury trial held in 2013
before Judge Bratton in the Court of Common Pleas of Dauphin County.
16. It was undisputed at the trial of that action that, except for a
shareholders' meeting which was called by Barbara M. Mumma in 2011, neither
Ms. Morgan nor, prior to her death, Barbara McK. Mumma, had called a meeting
of the shareholders of Bobali Corporation in approximately 20 years and had done
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nothing to develop the properties owned by the corporation. Moreover, Ms.
Morgan and Mrs. Mumma had caused the by-laws to be amended so that there was
only one Director (Mrs. Mumma) and, when she died in 2010, there were no
directors at all and Ms. Morgan was the only officer. Ms. Morgan did nothing to
call a meeting or to find a way to elect new directors.
17. Without belaboring the point, one of the principal issues before Judge
Bratton was that the parties could not agree on the ownership and the relative
percentages of the ownership of the stock of Bobali Corporation for reasons that
are not material here (e.g., whether Linda Mumma had sold all or only a part of her
shares to her mother at some point in the past).
18. Following trial, on December 31, 2013 Judge Bratton issued an Order
setting forth his ruling as to the current ownership of the stock of Bobali
Corporation. A copy of the Court's December 31, 2013 Memorandum Opinion
and Order is attached hereto as E�ibit B.
19. Unfortunately, as to the 1.4044 shares held in the Residuary Trust,
Judge Bratton's Order did not specify who had the right to vote those shares, given
the circumstances of the estate litigation in which Barbara McK. Mumma had died
in 2010 and the Will provided that the four siblings were to have the assets of the
Residuary Trust distributed to them, share and share alike, as it was then
constituted, as of July 17, 2010.
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20. On the final day of trial before Judge Bratton, Lisa Morgan testified
on rebuttal. The following exchange between the Court and Ms. Morgan concisely
captures the issue:
THE COURT: But you claim that you have the right to vote all
the shares or a substantial portion of them because of your
position as trustee and executrix, that if you had already
distributed everything you wouldn't have that power.
THE WITNESS: I don't believe I do have a majority interest.
I believe that myself, the estate - -
THE COURT: Not that you have a majority interest, that you
can vote a majority interest.
THE WITNESS: I don't believe that's the case.
Transcript, May 22, 2013, at p. 311. Despite Ms. Morgan's protestations to the
contrary, this is exactly what happened at the Bobali shareholders' meeting held, in
accordance with Judge Bratton's Order, on January 24, 2014 at the Crowne Plaza
Hotel in Harrisburg.
21. Ms. Morgan, in fact, did not attend the meeting at a11.2 Instead, Ms.
Morgan gave proxies to attorney Matthew Haar, her counsel of record in the
2 Barbara M. Mumma attended by conference call, and was represented by the
undersigned as her counsel, who attended in person. Robert M. Mumma attended
by conference call as well. Linda Mumma did not attend, and there is substantial
question as to whether she ever actually received notice of the shareholders'
meeting at all, although Attorney Haar stated that notice had been sent. There is
nothing to indicate that the notice, although perhaps sent, was ever actually
received by Linda Mumma prior to the meeting.
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Dauphin County litigation, purporting to give him the authority to vote not only the
shares Ms. Morgan held personally, and those which she held as Executrix of the
Estate of her mother, Barbara McK. Mumma, but also the shares held in the
Residuary Trust. As such, Ms. Morgan claimed (as represented by Attorney Haar
at the meeting) to have been able to authorize attorney Haar to vote a majority of
the shares of Bobali Corporation represented at the meeting, thereby determining
which sets of revised bylaws would be adopted and electing a majority of the board
of directors —herself and Attorney George Faller, Esquire, one of her own personal
counsel of record in this Estate litigation— as Directors of Bobali Corporation, over
the express objections of both Barbara M. Mumma and Robert M. Mumma II.
22. As a result, six days after the Bobali Corporation shareholders'
meeting, Barbara M. Mumma filed and served "Defendant Barbara M. Mumma's
Motion to Determine Voting Rights in Certain Shares of Bobali Corporation Stock
or, in the Alternative, to Stay Proceedings to Permit Such Determination by the
Court of Common Pleas of Cumberland County, Orphans' Court Division" (the
"Motion"). A copy of the Motion is attached hereto as E�ibit C and is hereby
incorporated herein by reference.
23. As the title of the Motion suggests, Barbara M. Mumma asked Judge
Bratton either to declare that, because the Residuary Trust holds nothing more than
a mere possessory interest in the shares of Bobali stock currently in the Residuary
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Trust, it should be the beneficial owners of the stock — the four Mumma siblings —
who should direct the voting of the Bobali shares. Each of the four siblings should
have the right to vote or to direct the vote of 0.3511 shares (1/4 of 1.4044 shares)
so that the interests of the real shareholders of the stock may direct the
corporation.3
24. On February 10, 2014, Judge Bratton issued an Order staying the
proceedings in the Dauphin County litigation to permit the filing of this Petition
with this Court. A copy of the February 10, 2014 Order issued by Judge Bratton is
attached hereto as E�ibit D.
25. On February 19, 2014, more than a week after Judge Bratton issued
his Order staying the proceedings, Ms. Morgan filed and served a response to the
Motion. There, Ms. Morgan renewed her efforts to persuade the Court to appoint a
liquidating receiver and, inter alia, asserted that this Court has already opined,
quoting this Court's Opinion pursuant to Pa. R.A.P. 1925 dated August 30, 2013,
that Ms. Morgan "was not obligated to attempt the impossible task of an immediate
3 For purposes of the shareholders' meeting and this petition, Barbara M. Mumma
does not dispute that Ms. Morgan had the right to direct the vote of the shares of
Bobali Corporation stock held in the Estate of Barbara McK. Mumma, as to which
Ms. Morgan is the executrix. Those shares are shares Judge Bratton held were in
the Estate of Barbara McK. Mumma through a contract with Linda Mumma, and
Ms. Morgan is both the executrix of the estate and the beneficiary of her mother's
estate. Thus, there, unlike the situation with the Residuary Trust, Ms. Morgan not
only controls a possessory interest in the shares held in her mother's estate but also
holds the beneficial interest in the stock.
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in-kind division of assets among the disputatious remaindermen upon the trusts'
terminations." (1925 Opinion at p. 11).
26. What Ms. Morgan does not quote, however, is the final sentence of
the same paragraph of this Court's Rule 1925 Opinion, in which this Court states
that "Distributions by the Trustee inconsistent with the ultimate resolution of those
[pending] objections would obviously involve a personal risk that she [Ms.
Morgan] might not choose to incur in the absence of satisfactory releases." Id.
27. Barbara M. Mumma recognizes this Court's concern as set forth
above. Accordingly, by this Petition Barbara M. Mumma merely requests either a
very limited distribution onlv of the 1.4044 shares of Bobali Corporation stock
currently held in the Residuary Trust or, in the alternative, a ruling that the four
Mumma siblings each have the right to vote or to direct the vote of their portion of
the 1.4044 shares (0.3511 shares) currently held in the Residuary Trust. That
stock, in its entirety, was valued by Lisa Morgan herself in the Account which she
filed for the period ending December 31, 2012 at only $32,971.64, and she is the
beneficial owner of 25% of those shares. Thus, if this Court directed Ms. Morgan
to make an immediate in-kind distribution limited to those shares, Ms. Morgan's
monetary risk would be minimal or, more likely, nonexistent. A declaration that
the four Mumma siblings, as the beneficial owners of the stock, have the right to
vote or to direct the vote of their shares, would involve no risk to Ms. Morgan.
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28. By requesting this limited immediate in-kind distribution in this
Petition, Barbara M. Mumma obviously could not subsequently object to the
distribution of 0.3511 shares to herself. She also has asked this Court to direct the
immediate in-kind distribution of 0.3511 shares of Bobali Corporation stock to
each of her three siblings, so Barbara M. Mumma could make no subsequent
objection to this Court directing Lisa Morgan to do what Barbara M. Mumma has
asked this Court to require.
29. Equally obviously, Ms. Morgan would not be complaining about the
in-kind distribution of 0.3511 shares of the stock to herself.
30. The undersigned counsel for Barbara M. Mumma has been advised
directly by Robert M. Mumma that Mr. Mumma does not object to an immediate
in-kind distribution of the 1.4044 shares of Bobali Corporation stock currently held
in the Residuary Trust, with 0.3511 shares being distributed to each of the four
Mumma siblings, one of whom is Robert M. Mumma himself.4
4 Mr. Mumma does not object to the immediate in-kind distribution of the Bobali
stock currently in the Residuary Trust. In fact, it is Mr. Mumma's position that the
stock in question should never have been in the Residuary Trust (or the Estate) in
the first place, and that the four Mumma siblings should have had that stock since
1986. It also has consistently been Mr. Mumma's position that since July 17, 2010,
the date of Barbara McK. Mumma's death, the assets of the Trust should have been
distributed immediately, share and share alike, as then constituted, to the four
Mumma siblings as beneficiaries, under the express terms of paragraph Eighth of
the Will.
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31. As to Linda Mumma's position on the subject, Barbara M. Mumma
does not have sufficient information to make any representations to this Court
about her sister's feelings on the subject, but suggests that if Linda Mumma has
any objection to receiving 0.3511 shares of Bobali Corporation stock, she could
easily make that position known to this Court prior to this Court's issuance of a
ruling on this Petition.
32. Moreover, if this Court were to direct an immediate in-kind
distribution of the shares of Bobali Corporation stock currently held in the
Residuary Trust, it is difficult to see how Ms. Morgan thereafter could conceivably
be held liable for complying with a court order.
33. Ultimately, the future of Bobali Corporation is at stake. Bobali
Corporation is unquestionably a corporation that was intended to be a family-
owned corporation with the four Mumma siblings as the shareholders. (It is not an
accident that the name of the corporation is "Bobali" (Bob, Babs, Linda, Lisa). It
is further obvious that, as originally intended, the four siblings were to proceed as
equals in the future of the corporation. This changed to a certain extent because
Linda Mumma, as determined by Judge Bratton, sold 1/2 of her original shares to
her mother during her mother's lifetime. Those shares now reside in the Estate of
Barbara McK. Mumma and ultimately will be owned by Ms. Morgan, as the
beneficiary of her mother's estate.
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34. An immediate in-kind distribution of the Bobali Corporation shares
currently held in the Residuary Trust will, consistent with Judge Bratton's ruling
on Bobali share ownership, result in the following ownership interests:
Lisa Morgan: 2.1489 + 0.3511 = 2.5 shares
Lisa Morgan (through Estate
of Barbara McK. Mumma): = 1.07445 shares
Robert M. Mumma II: 2.1489 + 0.3511 = 2.5 shares
Barbara M. Mumma: 2.1489 + 0.3511 = 2.5 shares
Linda M. Mumma: 1.07445 + 0.3511 = 1.42555 shares
Therefore, because of the sale by Linda Mumma to her mother, Lisa Morgan will
eventually own 3.57445 shares of Bobali Corporation stock. Barbara M. Mumma
and Robert M. Mumma II each will own 2.5 shares of Bobali Corporation stock,
and Linda Mumma will own 1.42555 shares of Bobali Corporation stock.
35. At the special meeting of shareholders of Bobali Corporation held
January 24, 2014, however, Lisa Morgan claimed the right to cast the vote for
4.62775 shares of Bobali Corporation stock, not 3.57445 shares. By this tactic,
Lisa Morgan claimed the right to outvote her siblings who attended the
shareholders' meeting, whose votes each were allegedly limited to 2.1489 shares,
and were not permitted to include the 0.3511 shares held in the Residuary Trust, to
which each was the beneficial owner. Therefore, Attorney Haar asserted that Ms.
Morgan's 4.62775 votes constituted a majority over the 4.2978 shares which
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Attorney Haar declared were all those which Barbara M. Mumma and Robert M.
Mumma II were entitled, together, to cast.5
36. To the contrary, the proper result should have been that Barbara M.
Mumma and Robert M. Mumma II each should have had the right to vote 2.5
shares of Bobali Corporation stock. Ms. Morgan should have had the right to vote
3.57445 shares of Bobali Corporation stock.
37. As set forth in more detail in the Motion submitted to Judge Bratton
following the January 24, 2014 meeting of shareholders of Bobali Corporation, at
the shareholders' meeting both Barbara M. Mumma and Robert M. Mumma II
expressly requested at each material point that Attorney Haar vote their shares
currently held in the Residuary Trust as they requested and as they cast their other
votes. See Motion, Exhibit C, at pp. 8-9. Had Attorney Haar done so, the three
newly-elected Directors of Bobali Corporation would have been Lisa Morgan,
Robert M. Mumma II and Barbara M. Mumma. Attorney George Faller would
have finished 4t'' and would not have been elected. See id. at p. 9 & n.5.
38. In the Motion submitted to Judge Bratton following the January 24,
2014 meeting of shareholders of Bobali Corporation, Barbara M. Mumma directed
5 Because of cumulative voting provisions in the by-laws, the votes which could be
cast by each shareholder were to be multiplied by a factor of three, because there
were three directors being elected. The details and corresponding numbers are set
forth in the Motion attached hereto as Exhibit C, as are the by-laws.
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the attention of the Court to applicable and persuasive authority for the position
that the intent of the testator is paramount and that the nominal owner of stock
(here, the Residuary Trust) has an obligation to vote stock held in the Trust in
accordance with the direction of the beneficial owners of the stock (here, the four
Mumma siblings), and not to vote those shares contrary to and in defiance of the
express wishes of the ultimate transferees. See Motion, pp. 14-18. Barbara M.
Mumma respectfully incorporates the Motion herein as authority for this Petition.
WHEREFORE, for the foregoing reasons, Barbara M. Mumma respectfully
requests that this Court issue a Rule to Show Cause upon Lisa M. Morgan, both
individually and as Trustee of the Residuary Trust, and upon Robert M. Mumma II
and Linda Mumma to show why the relief requested should not be granted.
Respectfully submitted,
WILLIAMS COULSON JOHNSON
LLOYD PARKER & TEDESCO, LLC
Dated: March 10, 2014 � �
Richard F. Rinaldo (I.D. No. 33222)
16th Floor, One Gateway Center
420 Fort Duquesne Blvd.
Pittsburgh, PA 15222
412-454-0259
(rrinaldo@will iamscoulson.com)
Attorneys for Defendant Barbara M.
Mumma
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LAST WILL AND TESTAMENT
OF
ROBERT M. MTJP'R,'IA
� I, ROBERT M. Mi1�1A, of the Borough of Wormleysburg, County of
Curaberland and Commonwealth of Pennsylvania, being oF sound and dis-
- posing mind and nemory, and not acting under influence of any person
whonsoever, do make, publish and declare. this ir.strtmment to be my
Last ?�Till and.. Testament, in manner and forn following.
FIRST; I hereby expressly revoke aII Wills , Codicils and t�sta-
� mentary writings of whatsoever kind and nature heretofore made by me.
SECON?�; I hereby direct my Executors , hereinafter named, to
_ pay all .�y just debts, expenses of admin-istration, funeral expenses ,
expenses o� erecting a suitable monument for �y g.rave and the cost o�
perpetual care thereof out o� my est2te, as soon as is practicable
after my decease�.
THIRD: I direct that all estate,� inheritance, transfer, legacy �
',; or succession taxes, or death duties , which nay be assessed of imposed
=� as a result of �y death or with respect to my estate. or ar_y part
_� thereof, wheresoever situated, whether or not passing under this my
. Last Will and Testament, including the taxable value of aZl �olicies of I
insurance on ny life a.*�d of all transfers , powers , rights , or interests �
includible in zn� estate for the purpose of such taxes and duties, shall �
be paid out of my ;eneral estate as an exnense of administration and ;
without apportionr�ent, and shall not be prorated or char�ed against any � �
of the gifts in this Will or against any property not passing under this
::7i].I. Zn the absalute 2isc�e�ion of z� E�ecutars , �iereir�after riamed,
they may pay such taxes i�ediately or .nay postgone the payment of the
taxes on future or re�nainder interests until the ti�e possession accrues
to the beneficiar� or beneficiaries named herein, t4y Executors taay, in " �
their discretion, arrange for extension of time ior the pay�ent of said
estate and inheritance taxes , and any interest and/or penalty in.curred
cn any such taxes , *ahether or not resulting from such extensions or post-
pone�ents , sha11 be borne by my estate .as an expense o� administration.
FOURTH: I �ive and bequeath unto ny son, R0$ER'T M. AIU1�g'1A, II,
the Gorgas Gra�dfather' s �Clock, which I consider owned by ale and which
has been in the Mumma family for many years. I further give and bequeath
unto my son, ROBERT M. MUr�IA, II, all of my jewelry, owaed by me at th'e
time of my death. .
FIFTH: I give and bequeath unto my daughter, LISA M. MU1�1A, my 38QSL
Mercedes automobile.
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E�TATE 070395
ESTATE 080939
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SIXTH: I give and bequeath unto my wife, BAR.BAR.A McK. MUI�?A,
all of my automobiles (except as to the one hereinabove disposed of)
and other articles o� personal use. Should my said wife predecease
me, aIl of. said personal effects as above described shall be distribut-
ed among my children living at the time of my decease in such manner
as they shall mutually determine. If my said living children are un-
_ able to agree to the distribution thereof, my Executors shall determine
the items to be distributed and to whom distributed and their determina-
tion shall be final and conclusive upon my said children.
SEVENTH; If my wife, BARBAR.4 McK, MUI�1A, survives me, I give and
- bequeath to the trustees hereinafter named, an amount equal to fifty
(SOx) percent of my total gross estate as finally determined for Federal
Estate Tax purposes, taking into account and including therein, for
computation purposes , my undivided interest in the value of al]. my
interests in property which pass or have passed to my wife under other
provisions of this Will or otherwise than under this Will� but only to '
the extent. that such interests are, for the purpose of the Federal
Estate Tax, included in determining my gross estate and .allowed as a
• marital deduction. In funding this Trust, I authorize my Execu tors to
use cash or other proper.ty or a combination thereof, and I direct that I
anp such other property so used sha11, for the purpose of funding the '
trust, be valued as of the date of its distribution. In computing the
amount of this bequest, I� direct that the values and amounts as finally
• determined for Federal Estate Tax purposes shall control.
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Notwithstanding anything to the contrary contained in this Wi11,
' I direct that (a) the Trust shall not be funded with an
• the proceeds of an y property or
y property which (1) would not qualify for the marital
deduction allowable in determining the Federal Estate Tax on my Estate �
or (2) is includible in �.ty gross estate for Federal Estate Tax purposes �
and also subject by reason of my death to any inheritance tax, transfer �
tax, estate tax or other death duty in any foreign country or p o litical '
subdivision thereof, except that the property described in this clause ;
�4j� ue allocated to tne Trust to the extent that other property or my �
Estate, which does qualify for the marital deduction, is nat sufficien�
to fund the Trust in full; (b) that the trustee shall not retain in
the Trust beyond �a reasonable time, any property which may at any time
be or become unproductive nor shall they acquire unp�roductive prcperty
as an investment to be h�eld in the Trust; and (c) that none of the
pa;aers granted to my Executors and trustees by this Will shal.l b e exer-
cised in such manner as to disqualify the Trust ar any part thereof from
the marital deduction allowable to determine the Federal Estate T ax on
my Estate, except as may be hereinaf ter grovide�,
I direct that the trustees hold said amount, In Trust Never th eless,
to .manage, invest and reinvest the s�ame, to collect the income an d to
_ pay over or apply the net income to, or for, the benefit of m� wife;
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ESTATE ���3g6
ESTATE 080940
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BARBARA McK. MIJMr�, at least yearly. My individual tr�stee, or�or
than my wife, solely and within her discretion alone� is authorized
to distribute to and for the benefit of my wife, BAR.BARA McK. MUMMA,
in addition to the income hereinabove specified, so much of the
principal of this Trust as she may deem necessary or advisatle ta
reasGn�bly 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 in-
come from other sources including, but not limited to, all income from
trusts� estates and business interests, as well as available principal
assets. Notwithstanding the limited invasion right of trust principal
by my one trustee for the use and benefit of my wife, which requires
a deficiency in other available funds , I �give unto my wife a right,
which shall not be cumulative, to request annually in writing a dis-
tribution to �her by the trustees fram the principal of this Trust of
up to Five Thousand ($5000. 00) Dollars or up to five (SZ) percent of
the then principal of this Trust, whichever shall be the greater, and
the trustees, upon receipt of such writin �
to my wife during the calendar year in whgchssaid writingywastreceived.
The annual request by my wife is not mandatory, but shall be made, if
desired, anly by herself individually. .•
I
I hereby authorize my Executors, in their sole discretion, to
elect that any part or a11 of any amount pas.sing under this article of
' my Last Will a�id Testament, to my wife, BARBARA McK. MUMMA, in the � '
event she survives me, be treated as qualifying terminal interest
property for the purpose of qualifying for the marital deduction a11ow-
:' able in determining the Federal Estate Tax on my Estate. Without limit-
ing the discretion contained in this foregoing sentence, it is my ex-
prectation that my Executor,'wi11 make said election with respect to aIl
of any such amount, unless the timing of my spouse 's death and mine and
the cc��ation of the combined death duties of our two (2) estates
renders such an election inappropriate. �
Upon the death of my said wife, the principal of this Trust, as it �
is th�n ccnstitu�ed, st-iall be �aid �ver by my surviving trus�tee unto
IIy children, ROBERT M. MTJ1��1A, II, BARBARA M. McCLURE, LINDA M. ROTH and
LISA M. MUMMA, free of this Trust, share and share al�..�ce, per s�tirpes
and not pe.r capita. -
EIGHTH: AlI the rest, residue and remainder of my property and
estate, both rEal and personal of whatsozver kind and wheresoever situate�
of which I shall die seized or possessed, and of which I sha11 b e en-
titled to dispose of at the time of m death
give, devise and bequeath unto the trustees hereinafter nam�edStIn eTrust,
Nevertheless, to hold, manage, invest and reinvest in the same, to collect
the income and to pay over or apply the net income to or for the benefit
- 3 - �
. �
� ESTATE 070397
ESTqTE 080941
.. ,
� �i �� wii�, S�� i•ich. ifLZujiA, at ieast yearly. My individual
trustee, other than my wife, soley and within her discretion alone,
is authorized to distribute to and for the benefit of ary wife,
BA.RBARA McK. MUMMA, in addition to the income hereinabove specified,
so much� of the principal of this Trust as she may deem necessary or
advisable to reasonably provide for her support, health, welfare,
� maintenance or comfort, to maintain for her a standard of living
which she has during our married life enjoyed, taking into account,
however, my wife's income from other sources including, but not limit-
ed to� aI.I income from trusts ,estates and business interests , as well
as available principal assets .
Upon the death of my said wife, the principa7: of this trust, as
it is then constituted, or, if my said wife does not survive me, upon
my death, my resi.duary estate, shal� be paid over by my surviving
trustee or by my successor Executor, as the case� may be, unto my
° children� ROBERT M. NNMMA, II, gARBARA M, McCLURE, LINDA M. ROTH and
LISA M. MiTl�II�A, share and share alike, per stirpes and not per capita.
' In the event any of my said children shall predecease .me Zeaving
issue (including adopted children) surviving, then and in that event
their share above provided shall pass to such issue. If, however, any
of my children sha11 predecease me without leaving issue, (including
adopted children) surviving, then and in that event their resp ective
shares above provided shall lapse and their share shall be equally
•� divided among my surviving children.
� In the event the Trusts established under Items Seventh and Eighth
•` of this my Last j7i11 and Testament, and my residuary estate established
under Item Eighth hereof, have not been f inally distributed as herein
provided, and there are no beneficiaries to receive the same in accordance '
therewith, the trust funds held by my trustees , and my residuary estate,
as herein named, upon the occurence of said contingency, shall be paid �
over, free of all Trusts, to the POLYGLINIC MEDICAL CENTER of Harrisburg�
Pennsyivania, said moneys and pr.onerty when so paid to *_he PC1T.V�T Ij�TTC
MEDICAL CENTER, both the .principal and the income received therefrom
shall from time to time be used by said Medical Center for capital im-
, provement� to the physical structure and plant of said Medical Center, -
and for moveable fixtures and equipment of a permanent nature which can
be used for patient treatment, care and comfort� but no part of such
money and property, eit�her principal or income, sha11 �e u�e� or agplied
to the current expense �n the operation of said Medical Center.
As used in this Wi11 and the Trusts hereunder, the masculine pro-
noun shall incTude the feminine, and the singular shall include the plural.
The Trustees .shalZ be vested with reasonable discretianary powers I
and in aIl ma�ters not otherwise herein specifically provided, they shall �
exercise their sound judgment and discretion in the perfo�-mance of their
duties hereunder. They sha11 not be Iiable for any error of judgm�nt
provided that such error is honestly made. .
_ � V—
" ESTATE 070398
ESTATE OSQ942
. .
�i�t�: I give and grant unto my trustees , and the survivor
thereof, and their successor or successors , the following powers , which
shall be construed broadly and which may be exercised by the� in either
or both capacities , as in their discretion they deem advisable, in
addition to and not in limitation of their cor.mmon law and statutory
powers:
- (?) To allot� assion, care for, collect, contract with re-
spect to� convey, convert, deal with, dispose of, enter into, exchange�
hold,. improve, invest, lease, manage, mortgage, grant and exercise
options with respect to, take possession of, pledge� receive, release,
sell, sue for, and in general do any and every act and thing and to enter
into and carry out any and every agreement with respect to the property
inc.luded in any trust created in this Will which they could ii they were
the absolute owners thereof, without being limite� in any way by the
specific g.rants of power hereinafter �ade.
(2) To retain for such time as in their judgnent may seem
advisable a11 or any part of my property or assets which at any time
_ shall constitute a part of the trusts he�rein provided for.
(3) To sell or exchange, either privately or at public sale
and without prior approval of any court, at such time or tines and at
such price or prices and on such terns and condit?ons as the trustees
• may consider advisable, all or any part of the trust property, real � �
_ personal or nixed, and to execute, verify, acknowledge and deliver all
deeds, bi11s of sale�, or other docurients which may be necessary or
: proper in the exercise o£ such powers without liablity on the nurchaser
• or purchasers to Ioo.k to the application of the purchase price, j
(4) � To mana�e an real � ;
as they may determine,binclLding authority tolalterthrepairs maintainr
I
or improve such property as hereinafter set forth� to mortgage such
property on such am,ount, on such conditions and at such rates of interest
as the.y shall deem advisable; to abandon such propertyj to adju�r_
boundries, to erect or demolish buildings thereon, to convert for a
different use, to dedicate for public use without compensation, to grant
easements and ri�hts-of-ways, to waive payment for property taken by
right of eminent do�ain and to claim and negotiate for paytnent for
property, to enter into party-wall contracts , to protect out of the
general funds of the Trusts created herein, to insure or per`ect title
and to charge the cost of any action taken with regard to any such
propertp to principal or income as they may determine. To �ake all
ordinary repairs to any real estate held by them and such extraordinary
repairs, a?terations or improvements against the principal of th e Trusts
herein created of which the property being repaired, altered or im-
proved forms a part: �
I
5 !�'� I
� . ;
ESTATE 070399
ESTATE 080943
. •. .
.
(5) To lease any real estate subject to the Trust herein
created for such terms or terms , and for such rental or rentals , and
under such covenants and agreements as may, in the discretion of the
tlllSt�ZS� be cozsidered for the best interest of the trust estate. The
trustees shall zecognize e:tisting leases , but still have the pcwer tv
agree to modificatioz of, or a*nend�aent to�� the terras of e�isting leases
or to extensions or renewals thereof. The trustecs shall have authority
to acquire by purchase, gift or otherwise, and to resell , receive, hold,
nana;e and control real estate, and any other interest therein, subject
to the Trusts , and do all things necessary or proper in the perfor�arrce
�of such functions. .•
(6) To invest, and from time to time to reinvest, to acquire,
a�d to retain temporarily or permanently the trust estates received or
held by them in cash or in kind or real or personal propertp, foreign
or do�estic, including by way of illustration, but not by way of lim�ta-
tion, cornmon or preferred stocks, invest�ent bonds, mortgages, debentures;
nctes , unsecuzed obligations , wasting assets, or investments which are
. unpro3iictive� overproductive or underproductive as in their discretioa
they r..ay deem advisable, and the total trust funds or the relation it
a:ay bear to trie type or character of other investr.ients in the trust estates,
or to tlie eiiect in the trust estates and� they shall not be restricted
i:: their choice under any present or future applicab?e law, it being my
_ inee*�tion to give my trust�es power to act in such manner as they will �
� �• believe to be for the best interest of the Trusts cr.eated herain.
- F (7) To pay income tax o� gains from th� sale or other con- �
-` versioz� of capit`1 assets out of the corpus thereof. .
r (8) To amortize, accelerate paS�nent of, reduce, e�tazd,
modi�y, settle or liquidate any Iien, encurnbrance, nortgage, or other i
.charge against any real estate or other property which may be subject
ta these Trusts . The trustees sha11 specifically keep and perforr.i all of
the coJenants, terms and conditions of any exista.ng mortaa;e or mortgages •
upon said real estate, on the part of the �ortgagor required to be ecept
and perxormed and sha11 have fu11 potver and authority with the consent
oF th� mortga�ee or mortgage�s , to refund, replace, extend or ot.herwise
a._*Zen� the sar.le, and to anticipate and accelerate any periodical paynents
thernin required. �
(9) To subscribe for stock allotments and to e;;erc�se all
ri�r.ts a�d �rivileg,es pertaining to securities which are available to
tre owner thereof.
(i0) To receive or make distribution of any tiust herein ;
created, either in money or in kind, or partly in 'money and partly in �
kind. The judgr.ient of the trustees as to what shall constitute an �
e�LitaDle distribution or apportionment shall be bindin�; and conclusive� �
upon the beneficiaries hereof. Nothing herein contained, hocaever, sha11
er_��o:r�r the trustees to mal:e distribution berore the time or times
specified herein.
_ 6 _ `T � �
ESTATE 070400
ESTATE 0809aa
. �
• •� . .
•f
(I1) To pay, collect, compromise� sue for or contract any
claim or other matter, directly or indirectly, affecting the Trusts,
(12) To use income andJor principal to maint�ain in force
any policies of life ir_surance which I may own on the life or lives
o� other persons or to receive in gift or purchase or maintain pre-
- viously existing insurance or annuity contracts for the benefit of
any benefici�ry, primary or contingent, if the trustees determin e
that the best interest of my family would be served by purchasing said
corztracts or by continuing such insurance in force, and to exercise
aZl the powers given to the owner �f such policies.
(13) To employ counsel, auditors, custadians, accountants ,
appraisers, engineers, and other persons, professional or otherwise,
as nay be necessary for �the proper administration of the Trusts, and
to pay their compensation for trust funds.
(14) To borrow money and as security thereof� to execute
_ bonds and mortgages containing warrants of attorney, to confess
judgment and to pledge personal. property. .
(Z5) To incorporate any unincorporated business received
rrom my estate. ,
�• -
. _ (16) To carry on and canduct any business enterprise in
which I may be enga�ed at my death.
, (17) To ho1d, invest and account for the separate Trusts
in one or �ore consolidated �unds, in whole or in part, as they may
determine. 9�s to each consolidated fund, the division into the
various shares comprising such fund need be made only on the tnistees '
books of account, in which each Trust shall be alloted its prop ortion- -
ate part of the principal and income of the fund and charged with its
proportionate part of the expenses thereof. No such holding sha11,
however, defer the vesting in possession of any estate created herein.
(187 As to each Trust created herein, to eYercise a11 the
powers granted and alI the duties imposed herein until such time after
the termination of that Trust as the property included in that Trust
� has been fu�Iy distrib�sted, and to do all other acts which, in their
judgment, may be necessary or appropriate for the proper or advantageous �
management, 'investment or disposition of any property included in any
Trust created herein.
TENTH: The rights, titles, benefits , interests and estates o� any �
beneficiary hereunder, including beneficiaries under the Trusts herein '
ereated shall not be subject to the rights �ar claims of his or her �
- 7 - ��� �
ESTArE Q70401
ESTqTE oRn4.��
. �� ,
� � : ,
creditors nor subject nor liable to any process of law or court,
nor subject to an assignment or transfer, voluntary or involuntary,
by a beneficiary hereof to another, and all of the income, principal
or other benefits from or under any Trust herein created, or this
Estate, shall be payable, and deliverable only, wholly exclusively
and p erson.ally to the designated beneficiaries he�reunder at the time
._ the designated beneficiaries are entitled to take the same under the
terms of this instr�ent.
�
ELEVENTH: I hereby direct that my Executors , trus�ees, or any
successor, as named by me herein, shall not be required to give bond,
or other security, required by law or otherwise, for the faithful
performance of their duties, whether as Executor or as successor
Executor or trustee.
TWELFTH: I direct that all dividends upon shares of stock at any �
time constitutin� part of my estate or any Trust hereby established �
payable in stock of the corporation declaring the same shall be deemed
to be corpus, except that such stock dividends paid regularly (i. e. at i
regular or substantially regular intervals) out of current earnings may, i
. in the discretion of my Executors or trustees, be deemed to be income
any my Executor and trustees shall have full power and authority to
determine whether any such dividends are so paid regularly out of
current earnings. All � cash dividends, irrespective whether the same are
. of the kind sometime described as ordinary dividends or of the kind
sometimes described�as "extraordinary dividends," excepting liquidating
dividends, shall be deemed to be income, and ny Executors and trustees
. shall also have fu11 power and authority to• deter-mine whether any divi= �
dneds upon shares of stock in a. wasting-asset corporation, and whether
any dividends of distributions in the stock of a corporation other than
the one declaring the same, or other property, shall be treated as corpus
or income or in part corpus and in part incone. Any election or deter-
mination pursuant to this paragraph may be made by my Executors or '
trustees , irrespective as to whether the dividend in question shall in
fact constitute corpus or income provided, however, that nothing in !
this paragraph contained sha11 be deemed to authorize my Executors or
trustees to retain any dividen•ds or any portions thereof, iasofar as
such retention would result in an illegal accumulation of income. In -
the event that rights to subscribe to securities or other prop erty sha11
� accrue upon any of the securities or other property, my Executors and
trustees are authorized, in their respective sole discretion, to exer- I
cise such rights or to sell the same, and insofar as may be permitted �
by law, the proceeds of such sa1e, or in the event of the exercise there-
of, the value thereof at the time of such exercise sha11 be and become �
a part of the corpus. '
_ g _
�
i
. �
,
ESTATE 070402
� ESTqTE 080Q46
, . ,
� '
•�.
TT?TTpi�ENTH: �;o�w���star�dir� L'ne
I direct that m stock in � Powers herein otherwise given,
Y privately held corporations, supervised and
administered by me as the Executive or operating officer prior to my
decease or my stock in privately held corporations which otherwise
is owned by me at my decease be not sold unless all of my trustees, and
particularly my individual trustee or trustees, sha11 agree in writing
_ that such stock shall be sold. 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 bene-
fit of and under the management and control of my immediate family.
FOURTEENTH: I hereby give unto my E.xecutrix, or her successors ,
hereinabove named, the fullest power and authority in aIl matters or
questions pertaining to the administration of my estate� executing the
provisions of this my Last Will and Testament , including, bu� not by
way of limitation, the power and authority to determine all doubtful
questions which may arise in the construction of this my Last Wi11 and
Testament and the trust hereunder;. I further hereby authorize and em-
power my Executri�c� or her successors ,� pending settlement of my estate,
� to sell, convey, mortgage, lease, exchange, encumber or otherwise dispose
of any and all of the property, real , personal or mixed, at any time be- I
_ longing to my estate, either at public or private sale, without prior
approval of any court, and at such times and for such �
and in any such case upon such terms as she may think bestein rherldis-
�• cretion, and I authorize and empower my said Executrix to execute,
� acknowledge and deliver to the purchasers , grantees , mortgagees , vendees ,
assignees or other persons, such contracts, deeds, mortgages, bi11s of
.' sale, and all other instruments of writing necessary or
• abli.gation upon the latter to see to the proper applicationPof thehout
proceeds. She sha11 also have the power to compromise or otherwise to
settle or adjust any and all claims , charges, debts and demands whatso-
ever against or in favor of my estate , as fully as I could do if living.
She shall further be empowered to c.arry on and conduct any bus iness
enterprise which I may be engaged at my death, to retain any assets ,
including stocks or securities which I may own at the ti!r!e ef �:y ��ath
pendin� settlement of my estate, without regard as to whether or not �
such assets or securities are legal investments for fiduciaries, and .may
make distribution in kind to my trustees . Pending settlement of my -
estate, she shall also have the authority in her discreti.on to convert,
sell, exchange or dispose of such assets and securities either for cash
or for terms satisfactory to her and to acquire other assets witnout
limitation to securities or investments as �ay be declared 1eg a1 for in-
vestment for fiduciaries . She sha11 further be empowered to b orrow
money, and to pledge assets of my Estate as security therefor, fo r the
purpose of paying taxes which may be levied upon or payable by my estate,
in accordance with this Will in the event that funds in the hands of my �
Executrix, or her successors, shall be iasufficient to pay such t�es�, I
and if; in the opinion of my Executrix, or her successors , it app ears that
conversion of securities and ather assets, real and personsl, would then • �
be made at a sacrifice.
.. �
- 9 - �~ .
' ESTATE 070403
EST,4TE 080947
. FIFTEENTH: I do hereby nominate, constitute and appoint my
wife, BARBARA McK. MLiMMA and my daughter, LISA M.
survivor of them, to be the co-Executrixes of this m�LaSt Will
an d Testament. In the event that both my wife, BARBARA McK. MUMMA,
and my daughter, LISA M. MiTMMA�, should both renounce this office,
refuse this appointment, predecease me or for any other reason be
unable to serve in this capacity, then and in that event, I di.rect
that the DAUPHIN DEPOSIT BANK AND TRUST COMPANY, of Harrisburg, Penn-
sylvania, shaZl be the successor Executor of this my Last Will and
Testament and as such Executor shall have all the rights, privileges,
obligations and duties conferred and created by reason of this appoin t-
ment. In addition, as established in paragraphs Seventh and Eighth
• of this my Last Will and Testament, I nominate, constitute and appoint
my wife, BARBARA McK. MUMMA, and my daughter, LISA M. MUMI�, to be
the co-Trustees of the Trusts established by me in said paragraphs
Seventh and Eighth, to administer said Trusts as herein directed. In
the event that my daughter, LISA M. MUMI�, should renounce this office �
as Trustee, refuse this appointment, predecease me or for any other
reason be unable to serve in the capacity as Trustee, then and in that
event, I direct that my son, ROBERT M. MCTMMA, II, shall be the succes-
sor co-Trustee to serve as such, with my wife, BARBARA McK. MUMMA, in �
both of the Trusts herein created, Upon the failure, for any reason
of my son to serve in that capacity, the DAUPHTN DEPOSIT BANK AND TRUST
, COMPANy is hereby constituted and appointed to serve as the successor
co-Trust�e, with my wife, BARBARA Z�fcK. MUI�IA, in both of, the Trusts
- herei.n created.
� �N WITNESS WI�REOF, I have hereunto set my hand and seal this
' !�_day of May, A.D. , 1982, at the end hereof.
�' SEAL�)
Robert M. Mumma.
SIGNED, SEALED, P UBLISHED AND DECLARED by the above-named Testator,
ROBERT M. MUMMA, as and for his Last Wi11 and Testament, in the presence
of us, who at his request, in his presence and in the presence of each
other, all being preser�t at the same time, have hereunto set our hands
as wit esses:
� ��.�,. ./,., � :�
.._ .�.1-/•�-:.�./� /�:�.
N�� � ' Addres s �� '
,� .
N e 1
�.. �� � �(.L Lt l �
� r ss '
'' ` � �r�"�i . '�
: . ..,�� s
Name Address '
i
ESTATE 070404
ESTATE 080948
, - ', .
FIRST CODICIL TO LAST WILL AND TESTAI�NT
OF
ROBERT M. MUMMA
KNOW ALL MEN BY THESE PRESENTS, that, whereas , I, the
undersigned, ROBERT M. MUMr�4, of the Borough of Wormleysburg,
County of Cumberland and Commonwealth of Pennsylvania, did on
the 19th day of May, 1982, make, execute, publish and declare
my Last Wili and Testament in writing, bearing date the day
and year aforesaid; and
. WHEREAS, I now desire to make certain changes therein and
modifications thereof and additions thereto.
NOW, THEREFORE� I, ROBERT M. MUMMA, being of sound mind
and memory, do make, publish and declare this my First.Codicil
to my said Last Will and Testament in manner following, that
is to say: • .
, I hereby r.evoke, in its entirety, paragraph Fifteenth of
my Last Ti�Till and Testament of May 19, I9g2, and substitute in
its place the following paragraph ninnbered Fifteenth as if said
. paragraph had been fully set forth tlzerein: �
FIFTEENTH: I do hereby nominate, constitute
and appoint my wife, BAR.BAR.A McK. MUMMA, and my
. daughter, LISA M. MUMMA, now LISA M. MORGAN, to be
the co-Executrices of this my Last Will and Testa- �
ment. In the event that my wife, BARBARA McK. MUMMA,
or aiy daughter, LISA M. MORGA.N, should renour.ce �his
office, refuse this appointment, predecease me, or
for any other reason be unable to serve in this
capacity, then and in that ecent, I direct that my
daughter, BARBA.R.A M. McCLURE, shall be the successor
• co-Executrix of this my Last jdill and Testament, and
as such co-Executrix sha11 havp all of the rights ,
duties , privileges and obligations conferred and
created by reason of this appointment. I further
direct that in the event of the inability, for any
reason whatsoever, for any two of the above-named
co-Executrices (original or successor) t.o serve in
such capacity, the third, the survivor of the three,
shall serve as a sole Executrix of this my Last Wi11
and Testament, however, in the event that all three
O�''�
ESTATE 0704�5
ESTATE 080949
� �`
� of my individual. co-Executrices shall be for any
reason unable to serve, then and in that event�
I direct that �AUPHIN DEPOSIT BANK AND TRUST COMPANY,
of Harrisburg, Pennsylvania, shall be the successor
Executor of this my Last Will and Testament and as
such successor Executor, shall have all of the rights ,
duties , privileges, obligations and duties conferred
by reason of this appointment. In addition, as to
the trusts established in paragraphs Seventh and
Eighth of this my Last Will and Testamsnt, I do now
nominate, constitute and appoint my wife, BARBARA McK.
M0���, ato be thegcoeTrustees �of�h ofwtheSA M.
established by me in paragraphs Seventh and Eighths
to administer said trusts as directed by my Last Will
and Testament. In the event my daughter, LISA M.
MORGAN, should renounce this office as Trustee, re-
fus e this appointment, predecease me, or for any other
reason is unable to serve in the capacity of Trustee,
then and in that event, I direct that my daughter,
_ BARBARA M. McCLURE� shall be the succes.sar co-Trustee
, to serve as co-Trustee with my wife, BARBARA McK. •
NNMMA: in both of the trusts herein created. Upon �
the failure, for any reason of my daugher, BARBARA M.
. McCLURE, to serve in that capacity, the DAUPHIN DE- �
POSIT BANK AND TRUST COMPANy� of Harrisburg, Fennsyl- �
vania, is hereby constituted and apgointed to serve
as successor co-Trustee with my wife, BARBARA McK.
MTJMMA, irz both of the trusts herein created.
AND, I do hereby ratify and confirrn a11 and singular the
pr�visions of my said Last Will and Testament dated May 19, 1982,
=�ee'yt as changed and madified by this my F`irst Codicil thereto.
.,�IN j�ITNESS WHEREOF, I have hereunto set my hand and seal this �
f2 day of October, 1984. -
�� (SEAL)
Robert M. Muamma
I
I
. ;
ESTATE 070406
ESTATE 080950
C� `
SIGNED, SEALED, PUBLISHED AND DECLARED by the above-named
Testator, ROBERT M. MUMMA� as and for his First Codicil to his
Last Wi11 and Testament, dated May 19, 1984, which Codicil con-
sists of two (2) pages in addition to this page, in the pres ence
of us , who at his request� in his. presence and in the presence
of each other, all being present at the same time, have hereunto
set our hands as witnesses :
��s� '� � ` � �
�_� � v
� ��- � K-L�-�° �y, v�t, .
Name � Address
Qlvx[ .�. l'C7'� � �Q� , r"�t .
N a� -A�-r—e s s--�
. , ' -- �
�e � Ad ress � �
. �
i
. I
�
�
�
�
ESTATE 070407
ESTATE 080951
�
LISA MORGAN, individually, and in her : IN THE COURT OF COMMON PLEAS
capacity as Executxix of the ESTATE OF : DAUPHIN COUNTY,PENNSYLVANIA
BARBARA MCKIMMIE MUMMA and .
Trustee of the RESIDUARY TRUST OF .
ROBERT M. I��1:JMNIA, SR., .
Plaintiff .
v. •
. �--'
ROBERT M. MUMIvIA,II, : NO. 2010-CV-11490-EQ � -�'� _ . ..
� c� � ���.,';;{:
B�IRBARA MANN MUMMA, and • 7'� cr`�'� ;�..,.�`,`:
LINllA MANN MUMMA, . �° `� �
-cs x � �.�'�;-;
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BOBALI CORPORATION, � .
Nominal Defendant : CIVIL ACTION—EQUITY
MEMORANDUM OPINION
This matter came before the Court on the Complaint of Lisa Morgan(hereinafter,
"Lisa")1 against har siblings Robert M. Mumnla,II (b.ereinafter"Bob"),Barbara Mann 1Vlumma
(hereinafter"Babs"), and Linda Mann Mumma(hereinafter"Linda"), and Bobali Corporation
(hereinafter"Bobali"). Lisa seeks the appointment of a custodian to preserve the assets of Bobali
or,alternatively, seeks the appointment of a liquidating receiver to wind up the affairs of and
dissolve Bobali.
During pre-trial conferences and the like,the parties requested that the Court first
determu�e the percentage interest of each of the shareholders of Bobali. We held non-jury
� Lisa asserts that she is bringing this action individually and as Execuirix of tlie Estate of Barbara McKimmie
Mumma, and as Trustee of the Residuary Trust of Robert M.Mumma,Sr.
, ,
proceedings on February 6-8,2013, and on May 21-22, 2013. AlI parties were then invited to
file post-hearing legal memoranda.
From all the testimony and other evidence presented,we conclude that Bobali was
and is a Pennsylvania business corporation. In the 1980's, it was owned entirely by a Colorado
corporation,Middle Park, Inc.,the shareholders of which included Lisa, Babs,Bob, Linda and
Pennsylvania Supply Company(hereinafter referred to as"Pennsy"), another Mumma family
business entity. In 1986, Pennsy owned 100,000 shaxes of Middle Paa:lc's issued and outstanding
stock, and Lisa and her siblings each owned 150,000 shares of Middle Park stock. Pennsy was
liquidated in 1986. As a result of that Iiquidation, tlie Mzddle Park stock owned by Pennsy was
distributecl to Pennsy's shareholders in accordance with their respective ownership of Penn.sy
immediately prior to its liquidation. Thus,Lisa,Linda,Bob and Babs each received an
additiona1478.47 shares of Middle Park, and all other Middle Park stock owned by Pennsy was
distributed to the Estate of Robert M.Mununa, Sr.,who had passed away on April 12, 1986.
On March 23, 1987, a"downstream merger" of Middle Park and.Bobali was
completed with Bobali as the surviving corporation. Bobali's authorized and issued shares wexe
a total of ten(10) shares.2 According to the testimony o£George Hadley, an accountant who had
worked for and with the Mu�vna family businesses fox some time, the merger resulted in each of
the Mumma children's receiving 2.1489 shares of Bobali (representing 21.49 percent
ownership). The estate of Robert M. Miunma, Sr., acquired the remaining 1.4044 shares of
2 We note that Defendants challenge the valid'zty or legality of the merger of Middle Park into Bobali by claiming
that certain corporate procedures were not followed back in 1986 or 1987. We find,however,tlzat the Defendants'
delay in raising such claims unduly prejudices the Plaintiff,particularly where,for nearly twenty-three years,
Defendants have consistently exercised their rights as shareholders of Bobali by scheduling and attending
shareholder meetings and,on one occasion,by sarving as the President of Bobali which Babs appears to have done
in 1991,without disputing the merger's validity. Thus,we find that Defendants are prohibited and estopped from
doing so now.See generally,Belitskus v. Stratton,830 A.2d b 10(Pa. Cmwlth.2003),appeal denied,841 A.2d 533
(Pa.2003).
2
� � /
Bobali stock and those shares were later"poured over"into the Residuary Trust established by
the Will of Robert M. Mumma, Sr. Thus, as of the completion of the merger of Middle Park into
Bobali,the shaxe register for Bobali would have read:
Bob 2.1489 shares
Lisa 2.1489 shares
Babs 2.1489 shares
Linda 2.1489 shares
Residuary Trust of R.M. Mumma, Sr. 1.4044 shares
TOTAL: 10.00 shares
On or about February 16, 1991,Linda entered into a Stock Purchase Agreernent
with her mother,Barbara McKimrnie Mi.uuma(hereinafter, "Kim"),under the terms of which
Linda agreed to convey all of her stock in Bobali to Kim for the total purchase price of$600,000,
payable in ten semi-annual installments. To accommodate this transaction,Linda's 2.1489
shares of Bobali were divided into ten share certificates of.21489 shares each. Upon the
payment of each semi-annual installment,one certificate would be assigned by Linda to
Kim. According to �lie testimony presented duri.ng the trial,K.im paid installments totaling
$300,000,but Liuda only signed over to Kim two certificates representing .42978 shares of
Bobali stock. Kim then refused to make any additional payments to Linda and Linda transfezred
no further stock certificates to her mother. Interestingly,however,we heard no testimony or
evidence that Kim or her estate have taken any steps to recover damages for the breach of the
3
Stock Purchase Agreement or to obtain specific performance of that agreement,in whole or in
part.
� With respect to those payment� and stock transfers which have already occurred
under the Stock Purchase Agreement, Linda testified that she believed she had transferred one-
half of her interest in Bobali to Kim as Kim had previously transferred$300,000 of the original
purchase price to Linda.3 We conclude,therefore,that Kim's estate holds an equitable interest in
one-half of Linda's total Bobali stock,representing 1.07445 shares. To the extent,however,
Lisa, as the Execufxix of Kim's estate,seeks specific pei�formance of the remaining payments and
stock transfers required under the Stock Purchase Agreement,we will not grant such relief where
Kim did not exercise her right to have the Stock Purchase Agreement fully performed prior to
her death, and where it appears that the applicable four-year statute of limitations during which
Kim could have raised a breach of contract claixn has run. See,42 Pa.C.S.A. § 5525.
As for Lzsa's claim that Linda had gifted her remaining shares of Bobali to Bob,
Babs, Lisa and Kini by means of written coi�respondence dated September 15, 2009, we note that
an inter vivos gift cannot be deemed to have been effective in the absence of actual ox
constructive delivery of the gifted property to the intended donees. See,Estate of Parkhurst, 167
A.2d 476 (Pa. 1961). The evidence does not establish that Linda delivered her remauung Bobali
stock certificates at the time she drafted and sent her letter to her siblings and mother,through
Lisa's counsel, Michael Finio, Esquire. Accordingly,we find that Linda failed to effectively gift
any shares of Bobali by means of her September 15,2009 conespondeiice and,therefore, she
will retain ownership of 1.07445 shaxes of Bobali stock.
3 At trial,Linda testified that she and Kim had entered into an oral agreement which terminated the Stock Purchase
Agreement and obviated the need for any additional performance under the terms thereof. The record,however,is
devoid of any evidence to support such a claim and therefore we give it little credence.
4
Turning to Lisa's request for the appointment of a custodian or liquidating
receiver,we note that Bobali has no cash or other liquid assets. It has no on-going operating
divisions. Tt does,however, own three parcels of undeveloped real estate which are Dauphin
County Tax Parcel#63-024-039 on Gibson Boulevard in Harrisburg,PA; Dauphin County Tax
Parcel#62-026-036 on Elmerton Avenue,Harrisburg,PA; and Perry County Tax Parcel#
280,090.00-096.000 located on Ramp Road,Amity Ha11,PA. All of these parcels have been
scheduled for sale for non-payment of real estate taxes, some on multiple occasions. All of those
scheduled sales, thus far, have been stopped only by last-minute payments,by one or more of the
individual shareholders, of the taxes owed, or have been stayed otherwise.
� We have no doubt at all that Bobali's affairs are at a standstill due to deadlock of
the shareholders which has thwarted any attempt to elect its directors and officers. For example,
Lisa fes�ified tha�Kim was elected the sole director of Bobali in 1991 and continued as such until
her death in 2010. Linda and Bob,on the other hand,testified that they believed that all of the
shareholders, i.e.,Lisa, Kim,Babs,Bob and Linda,were elected directors ofBobali at a
shareholders meeting which occurred in 1996. Lisa denies that she or Kim attended any such
meeting and,perhaps more significantly,the parties did not present documentation evidencing
the meeting at trial, Again, in 2011,following Kim's death, a shareholders meeting was called
by Babs in an effort to elect a new director;however,no such election occurred due to the on-
going shareholders' disputes.
Similaily,the shareholders have been unable to elect corporate officers or even to
agree upon the corporate bylaws which govern Bobali. The evidence demonstrates that
shareholder meetings quickly deteriorated into threats of litigation and argument about past
wrongs between one or more of the shareholders,rather than about the future of Bobali. Such
5
discord,we conclude,leaves us little choice but to granf the Complaint's request that we appoint
a custodian pursuant to 15 Pa.C.S.A. § 1767 to continue the business of Bobali, or a liquidating
receiver pursuant to 15 Pa.C.S.A. § 1985 to wind up and dissolve Bobali,unless, of course,the
_ shareholders can expeditiously resolve the deadlock which has plagued this corporation for so
long. See, e.g.,In re Self Drive It Corp., 134 A.2d 662 (Pa. 1957} (affu7ning appointment of
liquidating receiver for corporation because of a dispute between shareholders).
We will,therefore, enter the following Ordez as to our finding of the ownership of
Boba�i's issued and outstanding shares of stock held by each of the parties. We hope that such a
finding will lead to the convening of a meeting of shareholders withu�.the next thirty(30) days
and restoration of the ability of the corporation to do business. If we do not receive written
confirmation from counsel for the parties that a shareholders' meeting has been held,that bylaws
have been adopted,that directors have been elected, and officers chosen to run this corporation
by January 31,2014, we skall thereafter act upon Lisa's request for the appointment of either a
custodian or a liquidating receiver for Bobali.
Fox the foregoing reasons,we enter the following Order:
6
LISA MORGAN,individually and in her : IN THE COURT OF COMMON PLEAS
Capacity as Executrix of the ESTATE OF : DAUPHIN COUNTY,PENNSYLVAI�TIA
BARBARA MCK:IMM7E l��IUNBvIA and .
Trustee of the RESIDUARY TRUST OF .
ROBERT M. 1��IUMMA, SR., .
Plaintiff .
v. •
� -.,
ROBERT M. l��UMMA,II, : NO. 2010-CV-11490-EQ ", ,,�;
BARBARA MANN MTJMMA, and . � � �;';.�;,�E,,
G � ��c.:��,:
LINDA MANN 1��1JMMA, : -c� -�+`.
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Defendants . �' �`-,`�
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and : � �
BOBALI CORPORATION, .
Nomuial Defendant : C1VIL ACTION—EQUITY
ORDER
AND NOW, this 31St day of December, 2013, after trial and for the reasons set
,
forth in the foregoing Memorandum Opinion, it is hereby ORDERED that the cui�rent
shareholders of Bobali Corporation, and their respective stock ownership of Bobali
Corporation's ten(10) issued and outstanding shares, are as follows:
Lisa Morgan: 2.1489
Robert M.Mumma, II: 2.1489
Barbara Mann Muinma: 2.1489
Linda Mann Mumma: 1.07445
Estafie of Barbara McKimmie Munlrna: 1.07445
Residuary Trust of Robert M. Mumrria, Sr.: 1.4044
It is further ORDERED that counsel for the parties shall, on or before January 31,
2014, submit in writing the date on which a shareholders meeting was convened, if any, and the
business conducted at such meeting, including the adoption of corporate bylaws, the election of
duectors and the appoi.ntment of officers to run Bobali. Absent such notice fiom counsel, we
shall thereafter appoint a custodian or a liquidating receiver of the Court's choosing by separate
Order.
BY THE COURT:
� t
Bruce F, Bratton,J.
Distribution:
The Han. Brace F. Bratton
Matthew M. Haar, Esq., 2 N. Second Street, 7`h Floor,Harrisburg,PA 17101
Richard F.Rinaldo,Esq., One Gateway Center, 16�`Floor,Pittsburgh,PA 15222
Robert B. Eyre,Esq.,27 E. Front St.,Media,PA 19063
LindaM. Mumma,P.O. B,ox 30436,Bethesda,MD 20824
' ��� � � ����� .
� �ier�6y���iiy that�h��Qregoing P��
��'La�J an�cc��r�ct copy of#h��rigirt�t
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��f���QYi 1:�t�� ��• � . e
WILLIAMS COULSON, LLC
Richard F. Rinaldo (I.D. No. 33222)
16th Floor, One Gateway Center
420 Fort Duquesne Blvd.
Pittsburgh, PA 15222
412-454-0259 (rrinaldo@williamscoulson.com)
Atto�neys fo�Defendant Ba�ba�^a M. Mumma
_ �
LISA MORGAN, individually and in her : IN THE COURT OF CONIlVION
capacity as Executor of the ESTATE OF : PLEAS OF DAUPI3IN
BARBARA McHIlVIlVIIE MUMMA and : COUNTY, PENNSYLVANIA
Trustee of the RESIDUA.RY TRUST OF :
ROEERT M. MUMMA, SR. .
Plaintiff, .
�, : No. 2010-CV-11490-EQ
ROBERT M. 1��IUMMA II, .
BARBARA 1VIA,NN 11/IUMNIA, and .
LINDA MANN MUNIlVIA •
Defendants, .
and •
BO�ALI CORPORATION, .
Nominal Defendant. : Civil Action—Equity
DEFENDANT BAREARA M. MUMM1�'S MOTION TO
DETERMINE VOTING RIGHTS IN CERTAIN SHARES OF�OSALI
CORPORATION STOCK OR, IN THE ALTERNATIVE,
TO STAY PROCEEDINGS TO PERMIT SUCH DETERMINATION BY
THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
ORPHANS' COURT DIVISION
Defendant Barbara M. Mumma, by her at�orneys, Williams Coulson, LLC,
hereby requests that this Court enter an order substantially in the fonn attached
hereto as E�ibit B determining voting rights in the shares of stock in Bobali
Corporation currently held in the Residuary Trust according to the Will of Robert
M. Mumma, Deceased. In the alternative, Defendant Sarbara M. Mumina requests
that this Court enter an order substantially in the form of the alternative order
attached hereto as Exhibit C staying the proceedings in this civil action to pennit
the Court of Common Pleas of Cumberland County, Orphans' Court Division, to
either direct a partial distribution of the 1.4044 shares of stocic in Bobali
Corporation currently held in the Residuary Trust or to declare the voting rights in
said shares in response to a Petition which Barbara M. Mumma is in the process of
filing with that Court.
In support of her motion, Barbara M. Mumma respectfully states as follows:
The Material Facts
This Motion presents this Court squarely with the opportunity to determine
the future course of Bobali Corporation. This Motion asks this Court to clarify its
December 31, 2013 Order by identifying who properly had ,the right to direct the
vote of the shares of Bobali Corporation stock currently awaiting distribution but
held by the Residuary Trust of Robert 1VI. Mumma, I�eceased or, phrased another
way, who had the right to determine how those shares were to be voted. In the
alternative, this Motion asks this Court to stay the proceedings in this civil action
to provide the Court of Common Pleas of Cumberland County, Oiphans' Court
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Division to either direct a partial distribution of the Residuary Trust to distribute
said shaxes or to enter an order declaring who the proper party or parties to vote
those shares is in light of the current circumstances of the Residuary Trust.
By the Order of this Court entered IDecember 3 l, 2013, this Court listed the
"current shareholders of Bobali Corporation, and their respective stock ownership
of Bobali Corporation's ten (10) issued and outstanding shares." This Court then
Ordered that "counsel for the parties shall, on or before January 31, 2014, submit �
in writing the date on which a shareholders meeting was convened, if any, and the
business conducted at such meeting, including adoption of corporate bylaws, the
election of directors and the appointment of officers to run Bobali."
Counsel for Barbara M. Mumma, in compliance with said Order, hereby
notifies this Court that on January 24, 2014, a special meeting of the shareholders
of Bobali Corporation was held in Harrisburg, Pennsylvania in a conference room
at the Crowne Plaza Hotel, commencing at 1:00 p.m. in accordance with the Notice
of Special Meeting sent January 17, 2014 by Lisa Morgan, a copy of which is
attached hereto as E�ibit A. The IVotice attached a set of propased bylaws
- submitted by Barbara 1VI. Muinina for consideration by the shareholders.
As stated in the Notice, the shareholders' meeting was recorded by a court .
reporter, who was present in the conference room. Attending in person were the
undersigned, counsel for Barbara M. l�iIumma, and liiIatthew M. Haar, Esquire,
-3-
counsel of record for Plaintiff Lisa Morgan in this civil action. Robert M. Mumma
II attended by telephone conference call, as did Barbara M. Mumma from a
separate location.l Lisa M. Morgan did not attend either in person or by
conference call. Instead, she provided Attorney Haar with three separate proxies:
one for herself in an individual capacity, one for her in her capacity as Executrix of
the Estate of Barbara McKinunie Mumma, Deceased, and one for her in her
capacity as Trustee of the Residuary Trust of Robert M. Mumma, Deceased. Linda
M. Mumma did not attend in any capacity, and there was no proxy identified on
behalf of Linda M. Mumina. It is undisputed, however, that a quorum was present.
During the shareholders' meeting, there was substantial debate on a number
of issues, but the parties remained courteous throughout, despite their differences.
Eventually, new bylaws for Bobali Corporation were adopted. In fact, there were
two separate votes on new bylaws taken: the first was on the proposed bylaws
submitted with the Notice on behalf of Barbara M. Mumma, which failed to garner
the required votes. The second was on Barbaxa M. Mumma's proposed bylaws
with several amendments which were submitted by Attorney Haar on behalf of
1 The shareholders' meeting was delayed several times during the af�errioon by
virtue of the fact that the service providing the conference call was having severe
technical difficulties with its servers, and the conference call needed to be re-
connected multiple times through a technical assistance technician of the company
who finally conceded that its servers were down and provided a different telephone
number for participants to call.
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Lisa Morgan2 Declaring that only a simple majority was required to amend the by-
laws and to pass new bylaws, Attorney Haar declared that the proposed bylaws
submitted by Barbara M. Mumma as amended by the amendments submitted on
behalf of Lisa Morgan, had passed and were adopted.
The parties then proceeded to the election of Directors for Bobali
Corporation. It should be emphasized that all parties agreed that there should be
at least three (3) directors, that the directors should be elected by majority vote of
the shareholders that cumulative voting, including voting of fractional shares,
should be permitted, and that a shareholder could cast all shares for one candidate
or could split the shares among more than one candidate..
Four candidates for the office of Director were nominated: Lisa 10�1. Morgan
nominated herself and George B. Faller, Jr., Esquire, an attorney with the Martson
Law Offices located in Carlisle, PA. Barbara M. Mumma nominated Robert M.
Mumma II. Robert M. Mumma II nominated Sarbara IVI. Mumma.
Z There was substantial debate and disagreement about whether the bylaws could
be amended by a majority vote of the shareholders or whether such amendment
required a 2/3 vote. Matthew Haar, who chaired the meeting in his capacity as
proxy for Lisa Morgan in her individual capacity, took the position that the bylaws
could be amended by a simple majority. To avoid waiving their position that a 2/3
majority was required, both Robert lOil. Muanma II and Barbara M. Mumma voted
against the bylaws. Moreover, Mr. Mumma objected that he did not receive copies
of the amendments proposed by Attorney Haar to the proposed by-laws contained
in the notice in advance of the meeting, and requested a recess to review them,
which was refused by Attorney Haar, sitting as chairperson.
-5-
Given that cumulative voting was permissible, it is important for this Court
to understand the votes held by each shareholder, in light of the December 31,
2014 order of this Court. Because three directors were to be elected, each share
was required to be multiplied by 3.
The share interests, as multiplied by 3, were as follows:
Lisa M. Morgan, individually: 6.4467 shares.
Robert M. Mumma, II: 6.4467 shares.
Barbara M. Mumma: 6.4467 shares.
Estate of Barbara McK. Mumma, Deceased: 3.22335 shares.
Linda M. Mumnla3: 3.22335 shares.
1Zesiduary Trust of Robert M. Mumma, Deceased: 4.2132 shares.
The issue on which the voters could not agree, and which is not clear from the
December 31, 2013 Order of this Court, is this: Who properly has the right to
direct the vote of the shares of Bobali stock currently held by the Residuary Trust
of Robert M. Mumma, Deceased, in which the four Mumma siblings each have a
beneficial interesi or, phrased differently, who had the right to determine how
those shares are to be voted?
3 Linda 1VI. Mumma was not present in person, by telephone or by pro�.
Therefore, her votes were not cast and any votes in which she had an interest
should not have been cast.
-6- �
Matthew Haar toolc the position that Lisa Morgan, as Trustee, had the
unbridled right to vote all of the shares cunently held in the Residuary Trust in
whatever manner she chose. Sarbara M. 1Vlulnma, both directly and through her
counsel, the undersigned, took the position that each of the four Muinma siblings
holds a beneficial interest in 25% of the shares not yet distributed and held in the
Residuary Trust. Thus, each Mumma sibling would have an equitable an,d
beneficial interest in 0.3511 shares of Bobali Corporation stock. Multiplied by 3
because of the election of three directors, that means that each of the four Mumma
siblings would have the right to direct the voting of 1.0533 shaxes of Bobali
Corporation stock currently held in the Residuary Trust as that sibling saw fit.
In order for the record of the votes cast to be clear, each individual
shareholder cast that shareholder's votes separately, and Attorney Haar cast the
votes of each of the three proxies he held separately, so that the exact distribution
of votes would be recorded. The votes cast were as follows:
Lisa M. Morgan, individually: 6.4467 votes for Lisa M.
Morgan.
Robert M. Mumma, II: 6.4467 votes for Robert M.
Mumma, II.
Barba�a M. Mumma: 1.00 vote for Rober�M.
Mumma;
5.4467 votes for Barbara M.
Mumina.
-7-
Lisa Morgan as Executrix of
Estate of Barbara McK. Mumma: 0.494925 votes for Lisa M.
Morgan;
2.728425 votes for George
Faller.
Lisa Morgan as Trustee of Residuary
Trust of Robert M. Mumma, Deceased: 4.2132 votes for George Faller.
In each case, both Barbara M. Mumma and Robert M. Mumma II expressly
requested on the record that Attorney Haar cast the 1.0533 shares in which each
had a beneficial interest but were currently being held by the Residuary Trust in
the manner in which they cast their other votes.4 Attorney Haar therefore declared
that the three newly-elected Directors of Bobali Corporation are Robert M.
Mumma II, with 7.4467 votes; Lisa M. Morgan, with 6.941625 votes; and George
Faller, with 6.941625 votes. According to Matthew Haar's count, Barbara M.
Mumma finished fourth with 5.4467 votes.
Simply stated, the issue before the Court is this: If in fact Barbara M.
Mumma and Robert M. Mumina II were entitled to direct the voting of the shares
in which each had an equitable and beneficial interest but which currently have
not yet been distributed and are held by the Residuary Trust, then the three new
4 It should be noted that Barbara M. Mumma and Robert M. 1\iIumma II were
entirely consistent in making these requests. They also did so expressly and on the
record for each and every other vote cast during the shareholders' meeting, such as
those on the bylaws or with respect to any subsidiary motions.
-8-
Directors of Sobali Corporation will be Robert M. Mumma, II, Lisa M. Morgan
and Barbara M. Mumma. Mr. Faller finished fourth and was not elected.
The math involved is not subject to question. Attorney Haar voted the total
votes for shares held by the Residuary Ti-ust (4.2132 votes) for Attorney Faller. In
fact, he should only have voted only those shares in which Lisa M. Morgan has a
beneficial interest (25% of 4.2132 votes, or 1.0533 votes). He should not have
voted those in which Linda M. Mumma has a beneficial interest at all, and he
should have voted the 1.0533 votes which Barbara M. Mumma and Robert M.
Mumma each asked that he cast as they directed in the manner each of those two
shareholders directed.5
Barbara Mumma asks that this Court decide in her favor the question of
whether she has the right to direct the vote of the Bobali Corporation shares in
which Barbara 1Vlumma has a beneficial interest but which have not yet been
distributed to her and are being held in the Residuary Trust of her father, Robert liiI.
Mumma, Deceased, despite the fact that according to her father's will, the Trust
was expressly directed to terminate and the assets distributed on the death of her
5 The revised vote would subtract 3.1599 votes from George Faller, leaving him
with 3.781725 votes: he would receive 2.728425 votes from the Estate of Barbara
McK. Mumma, Deceased, and 1.0533 votes from the Estate of Robert M. Mtunina,
Deceased (Lisa 1Vlorgan's interest). Although not material to the revised outcome,
the votes from the Residua�y Trust in which Barba.ra M. Mumma and Robert M.
lOilumina II have a beneficial interest would increase each of their vote totals if
voted as they directed, leaving Attoiney Faller a distant fourth and not elected.
-9-
mother, Barbara McK. Mumma, who died on July 17, 2010, nearly 31/2 years ago.
If this Court feels uncomfortable making such a decision on voting rights for
the shares being held in the Residuary Trust, which is the subject of a pending
proceeding in the Orphans' Court Division of the Court of Common Pleas of
Cumberland County, In re Estate of Robe�t M. Mumma, Deceased, No. 26-86-398,
then in the alternative, Barbaxa M. Mumma requests that this Court stay the
proceedings in this civil action to permit the Orphans' Court in Cumberland
County to rule on the question, which is being presented to that Court by way of a
Petition for Partial Distribution from the Residuary Trust. Clearly, if that court
rules that a distribution is to be made, then the shares will be distributed equally to
the four Mumma siblings, and the Residuary Trust will no longer hold even a bare
possessory interest in the shares, which is all that it currently holds.
Ar�ument
Barbara McK. Mumma died on July 17, 2010. The Last Will and Testament
of Robert M. Mumma, which was introduced into evidence at the trial of this civil
action at Exhibit BMM-3, directs as follows:
Upon the death of my said wife, the principal of this trust, a� it
is then constituted, . . . shall be paid over by my surviving
trustee . . . unto my children, ROBERT M. l��IUMMA, II,
BARBARA M. McCLURE (now Barbara M. Mumma),
LINDA M. ROTH (now Linda M. Mumma) and LI�A M.
Il�IUMMA (now Lisa I�I. Morgan), share and share alike, per
stirpes and not per capita.
-10- �
Exhibit FMM-3, at p. 4 (emphasis supplied).
Despite the passage of well over three years since the death of Barbara McK.
Mumma, and despite the unequivocal language of the will of Robert M. Mumina,
the assets of the Residuary Tru.st have not been distributed, including the 1.4044
shares of Sobali Corporation listed as a part of the Statement of Principal of the
Residuary Trust in the Accountings filed in the Orphans' Court.
It is clear that this Court, during the trial of this civil action, recognized the
implications of the failure of Lisa Morgan to distribute the shares of Bobali
Corporation stock to her siblings. On the final day of trial, this Court addressed the
following question to Lisa Morgan as she testified on rebuttal:
THE COURT: But you claim that you have the right to vote all
the shaxes or a substantial portion of them because of your
position as trustee and executrix, that if you had already
distributed everything you wouldn't have that power.
THE WITNESS: I don't believe I do have a majority interest.
I believe that myself, the estate - - r
THE COURT: Not that you have a majority interest, that you
can vote a maj ority interest.
THE VVITNESS: I don't believe that's the case.
Transcript, May 22, 2013, at p. 311. Despite Ms. Morgan's protestations, this is
exactly what happened at the Bobali shareholders' meeting. Lisa Morgan. As
Trustee of the Residuary Trus�, voted all of the shares held in the IZesiduary Trust
-11-
for George Faller6, who is not a member of the Mumma family and who is, in fact,
a partner of the Martson Law Offices, which represents Lisa Morgan in the
Cumberland County proceeding. Attorney Haar declared that Attorney Faller had
been elected as a Director of Sobali Corporation. If, in fact, Attorney Haar did not
have the right to vote the 0.3511 shares (1.0533 votes) of Bobali stock held in the
Residuary Trust in disregard of the express instructions of Barbara M. Muxnma and
the 0.3511 shares (1.0533 votes) held in the Residuary Trust in disregard of the
express instructions of Robert M. Mumma II, both of which were expressly made
on the record at the shareholders' meeting, then Attoiney Faller would not have
been elected — Barbara M. Mumma would have been elected a Director of Bobali
Corporation.
This is not the time to engage in hyperbole or fulsome recriminations about
the motives of various parties. For more than two decades, Bobali Corporation has
been paralyzed by the fact that, except for an unsuccessful shareholders' meeting
called by Barbara M. Mumma in 2011, there had not been a shareholders' meeting
for 20 years. Moreover, as the record at trial demonstrates, the original bylaws of
6 When Attorney Faller was nominated, the question was raised as to whether
Attorney Faller likely will have a conflict of interest in serving as counsel to Lisa
Morgan in her capacity as Trustee in the Cumberland County Orphans' Court
inatter and serving as Director of Bobali Coiporation, since the best interests of
Bobali Coiporation likely will not coincide with those of the Trust. This, however,
is not the time to address that canflict of interest further.
-12- -
, ,
Bobali Corporation provided for a three-person Board of Directors. 5ee Exhibit
BMM-2, at Article N-1; Transcript (2/6 — 2/8, 2013), at p. 458. As a result of the
inane amendments to the bylaws made in 1990 or 1991, a vote of the Board of
Directors set the number of Directors. See E�ibit 72, § 4.03(a) and Transcript
(2/6-2/8, 2013), at p. 456. Thereafter, a resolution of the "Board of Directors" set
the number of Directors or Bobali Corporation at ONE. See Transcript (2/6-2/8
2013), at p. 455. Following that resolution, there was only one directo�c and
replacement directors to fill a vacancy or a change in the number of directors could
only be effected by a vote of the board of directors. Thus, when the only Director
of Sobali Corporation, Barbara McK. Mumma, died on July 17, 2010, Sobali
Corporation had no Directors and, thanks to the language of the bylaws, no
practical way in which to proceed to elect new directors. See Exhibit 72, Bobali
Corporation by-laws §§ 4.03(a), 4.04(a)[Vacancies to be filled by a vote of the
remaining directors, although how that was supposed to occur in a one-person
board was never explained].
One should not underestimate the progress that has been made as a result of
this Court's December 31, 2013 Order. A shareholders' meeting was held on
January 24, 2014, at which it is fair to say that all of the participants remained civil
to each other. Despite some disagreements, all parties agreed that a one-director
board needed to be replaced by a board of directors which consisted of at least
-13-
three members. For the most part, the parties appeared to agree on most of the new
by-laws proposed by Baxbara M. Mumma and circulated with the Notice of Special
Meeting.
Depending on this Court's ruling, it may be necessary to reconvene a
shareholders' meeting to vote again on the bylaws, because in order to avoid
waiving their position with respect to the voting of shares held in the Residuary
Trust, both were forced to vote against the bylaws that were proposed. Clearly,
that will not happen at a new meeting.
Nonetheless, according to the position tal�en by Lisa Morgan through
Attorney Haar, new by-laws were adopted. An election of Directors took place,
and this Court can decide who the three Directors of Sobali Corporation should be
from the undisputed information set forth above as to the vote counts. Those
numbers will not be disputed, and if they were, there will be a transcript taken by
the coui-t reporter available to the Court to confir-m the numbers involved.
Barbara M. Mumma' respectfully submits that under applicable law,
Attorney Haar was required to vote the shares of Bobali Corporation stock
,
� It is worthy of note that, since �eptember 17, 2010, Barbara M. Mumma has been
co-executrix of the estate of her father, Robert M. lOillununa, having been issued
letters on that date in accordance with the First Codicil to the Last Will and
Testament of Robert M. lO�Iumma that Barbara 1�1. Mumma serve as co-executrix.
�5'ee Exhibit BMM-3. This is not the occasion to discuss in any detail the fact that
Lisa Ililorgan has ignored Barbara liil. Mumma's status since thati time.
-14-
currently held in the Residuary Trust in which she has the equitable and beneficial
interest as Barbara M. Mumma directed, and not as Lisa Morgan gave Attorney
Haar unlimited discretion to vote. He also had the duty to vote the shares in Bobali
Corporation in which Robert M. Mumma has the equitable and beneficial interest
as Robert M. Mumma directed, and not as Lisa Morgan gave Attorney Haar
unlimited discretion to vote. .
The Last Will and Testament of Robert M. MLUnina, set forth above,
provides an explicit explanation of his intent. It is undisputed "the polestar in
every trust . . . is the settlor's intent . . . and that intent must prevail." In �e Je�ome
Markowitz T�ust, 71 A.3d 289, 300 n.9 (Pa. Super. 2013); In �e McKinney, 67
A.3d 824, �31 (Pa. Super. 2013)( "The settled law in Pennsylvania is that `the
polestar in every trust . . . is the settlor's . . . intent and that intent must prevail."),
quoting In �e Estate of McFadden, 2 A.3d 565, 572 (Pa. Super. 2010). See also In
�e Hi�t, 832 A.2d 438, 44� (Pa. Super. 2003)(same); Estate of Pew, 440 Pa. Super.
195, 655 A.2d 521, 533 (1994). Moreover, "the rules for determining a settlor's
intent are the same for trusts as for wills." Id. See also In �e McFadden, 705 A.2d
930, 931 (Pa. Super. 1998).
It is equally well established that 66[w]here provisions of a trust instrument
conflict, they should be read in such a fashion as to give effect to both andlor fulfill
the intent of the settlor." In re Hi�t, �32 A.2d at 44�, citing In �°e McCune,705
-15-
A.2d 861, 867 (Pa. Super. 1997). It is obvious from the provisions of the will and
the trust than the fact that Robert Mumma wanted his children to be equal
beneficiaries and to be treated equally following the death of Mr. Mumma's wife,
which occurred in 2010. Here, there are four residuary beneficiaries, one of whom
is the trustee, Lisa Morgan. Under Pennsylvania statutes, "A trustee shall
administer the trust solely in the interests of�the beneficiaries." 20 Pa. C.S. §
7772(a). See, e.g., Restatement (Third) of Trusts, § 78(1)(2007)("Except as
otherwise provided in the terms of the trust, a trustee has a duty to administer the
trust solely in the interests of the beneficiaxies . . ."). Here, where the Will
provides that there are multiple beneficiaries of the residuary trust, there is a
further well-established duty of impartiality among the various beneficiaries. "If a
trust has lcwo or more beneficiaries, the trustee shall act impartially in investing,
managing and distributing the trust property, giving due regard for the
beneficiaries' respective interests in light of the purpose of the trust." 20 Pa. C.S. §
7773. See, e.g., Restatement (Third) of Trusts, § 79 (2007).
The Superior Court of Pennsylvania, in In �e Scheidmantel, 868 A.2d 464,
488 (Pa. Super. 2005) provides guidance as to determining the intent of the testator
or settlor. In Scheidmantel, the Superior Court emphasized that although a trustee
does have discretion, "[t]he real question is whether it appears from the record that
the trustees acted in 66that state of mind99 contemplated by the grantor of the trust."
-16- �
. ,
Id., quoting In �e Briggs'Estate, 27 A.2d 430, 433 (1942)(which cited Restatement
of Trusts, Section 187 (1929)). In re Scheidmantel, 868 A.Zd at 488. In
Scheidmantel, the Superior Court concluded that "A trustee may be found to have
breached his duty of trust if he fails to exercise his discretion in a manner
consistent with the document that created the trust." Id. Given this well
established jurisprudence followed by the Superior Court, it is clear that the votes
of the shares of Bobali Corporation stock currently held in the Residuary Trust
should have been voted as those holding the beneficial interest in those shares
directed. Moreover, under Pennsylvania law, the exercise of discretion afforded to
a trustee in balancing the interests of successive beneficiasies is not unfettered— it
is always "subject to the specific language of the trust instrument" itself. In �e
Estate ofFeinstein, 364 Pa. Super. 221, 227, 527 A.2d 1034, 1037 (19�7).
This principle has been recognized in other jurisdictions for decades. For
example, in In �e Canal Const�uction Co., 21 Del. Ch. 155, 182 A. 545 (Del. Ch.
1936), the Court commented that even if the transferee might not vote the shares
directly, "it does not necessarily follow that the transferor may exercise the voting
right in defiance of the transferee's wishes. So far have courts recognized the
equity of the true owner of stock to control its voting power as against the
registered holder, that the latter has been required to deliver a proxy to the former .
. . and a dry trustee has been held to vote stock in accordance with the beneficial
-17-
. �
owner." Id. at 162, 182 A. at 548. Although it is true that a trustee may not be
under a general obligation to vote stock as directed by trust beneficiaries, see
Insitufo�m of North Ame�ica, Inc. v. Chandle�, 534 A.2d 257, 271 (Del. Ch. 1987),
here, where the express terms of the Will creating the Trust provide that the Trust
was to have been terminated and the stock distributed more than three years ago,
the Trust is a mere nominal owner of the shares and owes duties to the real
beneficial or equitable owner of the stock. ,See, e.g., In �e Giant Portland Cement
Co. 26 Del. Ch. 32, 41, 21 A.2d 697, 702 (Del. Ch. 1941).
Baxbara M. Mumina respectfully requests that this Court clarify its
December 31, 2013 Order in this action in equity by confirming that, as to the
shares of Bobali Corporation stock held in the Residuary Trust, it is the equitable
and beneficial owners of that stock who have the right to direct how those shares
are voted, and not the trustee, because under the clear and unequivocal terms of the
Last Will and Testament of Robert M. Mumma, those shares should already have
been distributed and transferred to the beneficiaries following the death of Barbara
McK. Mumma on July 17, 2010, more than 31/z years ago.
Barbara M. Mumma has not been able to locate any authority suggesting that
this Court does not have the power to declare which persons have the right to direct
the voting of the shares of Bobali Carporation stock currently held in the Residuary
Trust. However, in an abundance of caution, Barbara 1VI. Mumma has enclosed an
-15-
alternative order by which this Court simply stays any further proceedings in this
Court in order to give the Court of Common Pleas of Cumberland County,
Orphans' Court Division, in In re Estate of Robe�t M. Mumma, Deceased, Case
No. 21-86-398, an opportunity to rule on a Petition being filed with that Court
requesting an immediate partial distribution of the shares of stock in Bobali
Corporation currently being held in the Residuary Trust or, in the alternative,
cleclaring that the four beneficiaries of the Residuary Trust — the four Mumma
siblings — each share equally in the voting rights of said shares, and each have the
right to vote or direct the voting of 0.3511 shares of the Bobali Corporation stock
currently held in the Residuary Trust.
-19-
Conclusion
For the foregoing reasons, Defendant Barbara M. Mumma respectfully �
requests that this Court enter an order substantially in the form attached hereto
declaring that each of the Mumma siblings has the right to vote or to direct the vote
of 1/4 of the shares of Bobali Corporation stock currently held and not yet
distributed in the Residuary Trust created by the Last Will and Testament of
Robert M. Mumma, or, in the alternative, staying any further proceedings in this
civil action to permit a ruling by the Court of Common Pleas of Cumberland
County, Orphans' Court Division either directing a distribution of the shares from
the Trust or directing the Trustee to vote the shares in accordance with the wishes
of those holding the beneficial interest in the shares.
Respectfully submitted,
WILLIAMS COULSON, LLC
< <
Dated: January 3 0, 2014
, Richard F. Rinaldo (I.D. No. 33222)
16�' Floor, One Gateway Center
420 Fort Duquesne Blvd.
Pittsburgh, PA 15222
412-454-0259
(r�inaldo@williamscoulson.com)
Attorneys fo�Defendant Ba�ba�^a M.
Mumma
-20-
BOBALI CORPORATION
NOTICE OF SPECIAL MEETING
To: Barbara M. Mumma
c/o Richard F. Rinaldo, Esq.
Williams Coulson Johnson Lloyd
Parker &Tedesco, LLC
16th Floor, One Gateway Center
Pittsburgh,PA 15222
rrinaldo@williamscoulson.com
(via email and first class mail, postage prepaid)
Robert M. Mumma II
c/o Robert B. Eyre, Esq.
Foehl &Eyre, P.C.
27 East Front Street
Media, PA 19063
rob@foehllaw.com
(via email and first class mail, postage prepaid)
Robert IVI. Mumina II
6880 Southeast Harbor Circle
Stuart, FL 39466
rmmtwo@mac.com .
(via email and first class mail, postage prepaid)
. Robert M. iVlumma II
Box 58
Bowmansdale, PA 17008
rmmtwo@mac.com
(via email and first class mail, postage prepaid)
� Linda M. Mumma
P.O. Box 370
Grantham,PA 17027-0370
Imann333 @gmail.com
(via email and first class mail,postage prepaid)
Linda M. Mumma
P.O. Box 30436
Bethesda, MD 20824
lmann333@gmail.com
(via email and first class mail, postage prepaid)
204833.1 Ol/17/2014 �
Pursuant to section 2.01(a) of the bylaws, and pursuant to the Memorandum Opinion and
Order issued by Judge Bratton on December 31, 2013, a special meeting of the shareholders of
Bobali Corporation is scheduled for Friday, January 24, 2014, at 1:00 pm at the Crowne Plaza
Hotel, 23 South Second Street, Harrisburg, PA 17101. Babs Mumma has arranged and paid for
the meeting room as a courtesy to the other shareholders.
Any shareholders desiring to participate in the meeting by conference call or similax
equipment pursuant to section 2.07 of the bylaws should notify Lisa Morgan immediately so that
arrangements can be made.
The meeting will be recorded stenographically. Lisa Morgan will arrange for the court
reporter.
The following matters may come before the shareholders:
1) setting the number of directors;
2) election of directors;
3) scheduling a meeting of the directors, potentially to include a meeting of directors
immediately following the shareholders meeting;
4) pursuant to section 2.03(b) of the bylaws, the shareholders may consider amendment
of the bylaws. A proposed draft of bylaws submitted by Barbara Mumma is attached hereto; and
5) the shareholders will attempt to review outstanding amounts due to shareholders for
monies advanced to the corporation or paid on behalf of the corporation from 1999 to present to
pay taxes and other essential expenses as well as monies due to George Hadley for accounting
and tax document preparation services. The shareholders will further attempt to fix the amounts
owed and appropriately acknowledge those debts.
Respectfully submitted,
�` ,���
Dated: January 17, 2014 �' � '
Lisa M. Morgan
1140 North Ocean Boulevard
Gulf Stream, FL 33483
kemosabe 1 @aol.com
-2-
zaas3�.�ournzoia
REVISED DRAFT PROPOSED BOBALI BY�LAWS FOR
JANUARY 24 2014 SHAREHOLDERS' MEETING
BOBALI CORPORATION
BY-LAWS
Article I: Offices and Fiscal Year
Section 1.1. Re�istered Office. The registered office of the Coiporation shall be at 112
Market Street, Harrisburg, Dauphin County, PA 17101-2043 until otherwise established by vote
of the Board of Directors and a record of such change filed with the Pennsylvania Depai�tment of
State in accordance with law.
Section 1.2. Other Offices. The Corporation also may have offices at such other places as the
Board of Directoxs may fiom time to time appoint or the business of the Coiporation may
require.
Section 1.3. Fiscal Year. The fiscal year of the Corporation shall be as designated by the
Board of Directors from time to time.
Article II: Corpo�rate Seal .
Section 2.1. The corporate seal shall have inscribed thereon the name of the Coiporation, the
words "Corporate Seal, Pennsylvania" and such other words as the Board of Directors shall
select.
Article III: Shareholders and Shareholders' Meetings
Section 3.1. Location of Meetin�_ All meetings of the shareholders shall be held at the off'ice
of the Corporation at 112 Marlcet Street, Hai7•isburg, Pennsylvania 17101-2043 or at such other
location or locations designated in the Notice of Meeting of Shareholders sent pursuant to these
By-Laws.
Section 3.2. Annual Meetin�. The annual meeting of the shareholders of the Coiporation
shall be held on the third Monday in Februaiy of each year if not a legal holiday in the
Commonwealth of Pennsylvania, and if a legal holi.day, then on the next succeeding business
day, commencing at 10:00 a.m. Eastein Standard Time, when the shareholders shall elect a
Board of Directors, and transaet such other business as may properly be brought before the
meeting. If the annual meeting shall not be called and held within two months after the date and
time designated in these By-Laws, any sha.reholder may call the annual meeting at any time
thereafter by Notice send pwsuant to these By-Laws.
Section 3.3. Special Meetin�s. Special meetings of the Shareholders of the Corporation may
be called at any time by the President of the Coiporation, by resolution of the Board of Directors
or by any Shareholder entitled to c�st at least ten percent(10%) of the votes that all Shareholders
- 1-
R�VISED DRAFT PROPOSED BOBALI B�-LAWS FOR
JANUARY 24, 2014 SHA.REHOLD�RS' MEETING
are entitled to cast at such meeting. A request for such special meeting shall be delivered in
writing or via elect�•onic mail to the Secretary of the Coiporation, and it shall be the duty of the
Secretvy or otrer person authorized by the Secretary to fix the date and time of the meeting,
which shall be held not more than forty-five (45) days after the delivery to the Secreta.ry of the
request. If, following delivery of the request, the Secretary shall fail or refuse within ten (10)
business days thereafter to call such special meeting, then the President, the Board of Directors
or the Shateholder making such request may call the meeting by written Notice sent pursuant to
these By-Laws.
Section 3.4. Attendance of Shareholders. Any Shareholder may attend and participate in any
meeting of the shareholders of the Coiporation, including the annual meeting, by attendance in
person or by proxy, or attendance via telephone or internet conference call or video conference.
If attending by telephone or internet conference call or video conference ("Remote
Participation"), such Shareholder must give Notice to all other Shareholders of that shareholder's
intent to pai�ticipate by Remote Participation to all other Shareholders at least five (5) days prior
to the date set for the Shareholders' meeting.
Section 3.5. uorum. The presence, in person or by proxy, including those who exercise the
right to Remote Participation, of Shareholders entitled to cast at least a majority of the votes
which all shareholders are entii:led to cast on any particular matter shall constitute a quorum for
the purpose of considering such matter and, unless otherwise provided by applicable statute, the
acts, at a duly authorized meeting, of the Shareholders present, in person or by proxy or by
Remote Participation, and a majority of the votes cast shall constitute a majority vote of the
Shareholders. The Shareholders present at a duly authorized ineeting, whether in person, by
proxy or by Remote Participation, can continue to do business until adjournsnent,
notwithstanding the withdrawal or departure of enough shareholders to leave less than a quoivm
present.
Section 3.6. Adiournment of Meetin�s. Adjournment or adjournments of any annual or
special meeting of the Shareholders may be taken, but any adjournment to be taken prior to the
election of diz�ectors shall be adjourned only fi•om day to day, or for such longer periods as may
be directed by the shareholders present in person, by proxy or by Remote Participation and who
are entitled to cast at least a majority of the votes which all such Shareholders would be entitled
to cast at an election of directors until such electors have been elected.
Section 3.7. Chairperson of Shareliolder Meetin�s. At every ineeting of the Shareholders,
fihe Chaiiperson of the Board of Directors, if ihere be one, or, in case of a vaca�cy in the office or
the absence of ihe Chairperson of the Board of Directors, the President of the Corporation, if
there be one, or, in the case of a vacancy in the offce or the absence of the President, a person
chosen by vote of the Shareholders present, whether in person o�• by pi•oxy or by Remote
Participation, shall act as Chaiiperson of the meeting of shareholders. The Secretary or, in the
.absence of the secretary, an assistant secretary, or, in the absence of both the Secretary or
assistant secretaries, a person appointed by the Chairperson shall act as Secretary of the meeting
of shareholders.
-2-
REVISED DRAFT PROPO5ED BOBALI BY-LAWS FOR
JANUARY 24, 2014 SHAREHOLDERS' MEETING
Section 3.8. Presence of Court Reporter. At the request of any Shareholdei•,made in writing
or by electronic mail, to the Secretary of the Corporation at least lhree (3) business days prior to
any meeting of the Shareholders, the Secretary shall insure that a certified Court Reporter is
present at the meeting of Shareholders and that a transcript of the proceedings be made. Any
Shareholder may request a copy of the transci7pt directly fiom the Court Reporter following the
Shareholders' meeting. The cost of such attendance and the original transcript by the cei�tified
Court Reporter shall be borne by the Coiporation and retained by the Secretary with the official
records of the Coiporation, 6ut any Shareholder who requests a copy from the Cotut Repoi�ter
shall be personally responsible for the payment of the cost of such nanscript copy and shall
ai7ax�ge with the Court Reporter to have the invoice for such copy sent directly to the
Shareholder requesting the copy.
Section 3.9. Votin�Ri�hts. At each meeting of the Shareholders, every Shareholder having
the right to vote shall be entitled to vote either in person (including by Remote Participation) or
by proxy. No proxy holder shall be peimitted to attend the Shareholders' meeting via Remote
Participation, but shall attend in person, and any proxy must be a natural person over the age of
eighteen (18). No proxy may be given to a coiporation or business entity. Every Shareholder of
the Coiporation shall be entitled to one vote for every share, and to a fiaction of a vote equal to
every fractional share owned by that shareholder. In all elections for directors of the Corporation,
cumulative voting shall be allowed.Eveiy proxy shall be exercised in v�niting by the Shareholder
and a notasized copy thereof shall be delivered to the Secretaiy of the Cozporation prior to or at
the commencement of the shareholders' meeting for which the proxy is valid. In the event that a
Shareholder plans to attend and vote by proxy, said Shareholder shall give at least tluee(3) days'
written notice of such intent to the Secretary of the Coiporatian. Written notice shall be deemed
to include electronic mail. A proxy shall be revocable at will by the shareholder,
notwithstanding any other agreement or any provision in the proxy to .the contrary, but the
revocation shall not be deenied effective until notice thereof has been delivered to the Secretary
of the Coiporation. Notice of the revocation of a proxy must be made by means of a notarized
document to be effective, and may be delivered via electronic mail only with a copy of the
notarized document attached, thereafter with the original being delivered to the Secretary of the
Corporation. Until revoked, the any vote cast by a duly authorized proxy No um•evolced proxy
shall be valid after six(6)months from the date of its execution by the shareholder.
Section 3.10. Shares Owned bY Corporations. Shares of the Corporation owned, directly or
indirectly, by the Coiporation and controlled, directly or indirectly, by the Board of Directors of
the Coiporation, shall nat be voted at any time and shall not be counted in determining the total
number oi ouistanding shares for puiposes determining whether a quorum exists at any given
meeting or time.
Section 3.11. Jud�es of Election. After the commencement of any Shareholders' meeting, but
. before the talcing of any other vote, the shareholders, upon motion of any sha.reholder, may
request the appointment of judges of election, who need not be Shareholdei•s, to act at any such
meeting or any adjournment thereo£ The number of jud�es of election shall be tlu-ee, unless all
Shareholders unanimously agree by vote to waive the requirement of t1u•ee judges of election, in
which case, a single judge of election shall be appointed by majority vote of the Shareholders.
No person who is a candidate for a position as director or for an office to be filled at the meeting
-3-
REVISED DRAFT PROPOSED BOBALI BY-LAWS FOR
JANUAR'Y� 24, 2014 SHAREHOLDERS' MEETING
shall act as a judge of election, and No person authorized to act as proxy for any such
Shareholder shall act as a judge of election.
Section 3.12. Written Notices. Whenever written notice is required to be given to any person
under the provisions of any applicable statute or by the articles of incorporation of the
Coiporation or these By-Laws, it is to be given in writing and may be given either pei`sonally or
by sending a copy thereof by any foim of United States mail requu•ing receipt be signed by the
addressee or pei�nitting delivery confu7nation to be determined from the website of the United
States Postal Service. Commercial carriex, such as Federal Express, shall be peimissible, so long
as such commercial caiZier service requires receipt to be signed by the addressee or permitting
delivery confirmation to be deterinined from the commercial cai7•ier's website. The Secretary of
the Coiporation shall maintain a11 records of such notice being given, including any receipts and
electronic confiimations from cailzer websites. The address to which such notice shall be sent
shall be the shareholder's most recent address shown on the books of the Corporation or the
shareholder's address as delivered to the Secretary of the Coiporation in a written document
delivered to the Secretary. The address may include an e-mail address, but such e-mail address
is not mandatoiy. Each shareholder shall be responsible for talcing reasonable efforts to provide
the Colporation with a cui7ent mailing address and, if possible, a telephone number and e-mail
address.Notices sent to the shareholder's most recent address as set foi�th above shall be deemed
to have been accurately addressed.
Section 3.13. A�endas for�necial Meefin�s. For any special meeting of the Shareholders, the
Notice shall include a tentative agenda of the subjects to be addressed during the Shareholders'
meeting. In the instance of a Shareholders' meeting at which one purpose is to include action on
� the By-Laws, then the written Notice shall be given to each shaa-eholder that one puipose of the
Shareholders' meeting will be to amend, adopt or repeal By-Laws, and the Notice shall enclose a
copy of the proposed amendments or changes or a summary of the� principal changes to be
effected by such action on the By-Laws. At any time prior to or at the commencement of any
annual or special meeting of Shareholders, any Shareholder may waive such notice by attendance
at the Shareholders' meeting,whether in person, by proxy or by Remote Participation.
Section 3.14. List of Shareholders. For any meeting of the Shareholders following the
adoption of these By-Laws, the Secretary of the Coiporation shall malce, at least five (5) days
before the date set for the meeting of Shareholders, a coinplete list of the Shareholders who are
the owners of shares of the Corporation, ai7anged �in alphabetical order, with the address
(including, if possible, the telephone nu�nber and e-mail address) of each Shareholder and the
numUer of shares held by each. A copy of such list shall be sznt in advance of the Shareholders'
meeting to each Shareholder upon written request of the Shareholder to the Secretary. Such list
also shall be brought by the Secretary or the Secretary's designee to the shareholders' meeting
and shall be available for inspection by any Shareholder either prior to or during the
Shareholders' meeting. Any and all proxies also shall be brought by the Secretary or the
Secretaiy's designee to the shareholders' meeting at wluch they may be voted.
Section 3.15. Corporate Ownershin of Shares. In the event that any shares of the Coiporation
are owned by a cozporation or business or other entity, then such shares may oniy be voted by
the proxy appointed by proper action of the other corporation or business or other entity, such as
-4-
� REVISED DRAFT PROPOSED BOBALI BY-LA'VVS FOR
JANC7ARY 24 2014 SHAREHOLD�RS' MEETING
a resolution of the other corporation's board of directing appointing the proxy. Any such
authorizing document shall be filed with and maintained by the Secretary of the Coiporation.
Section 3.16. Waiver of 1V''otice. Attendance of a person at any meeting shall constitute a
waiver of notice of the meeting, except where the person attends for the purpose of objecting, at
the beginning of the meeting, to the transaction of any business because the meeting was not
lawfully called or convened.
Article IV: Directors and Directors' Meeting�
Section 4.1. Number of Directors. The business of the Corporation shall be managed by its
Board of Directors,which shall consist of no fewer than three (3)persons, each of whom shall be
a natural person over the age of eighteen (18). A Director need not be a resident of the
Commonwealth of Pennsylvania and need not be a shareholder in the Coiporation.
Section 4.2. Election of Directors. The nuinber of Duectors to constitute the Board of
Directors of the Coiporation shall be determined by vote of the Shareholders at a meeting of the
shareholders,but such Board of Directors may not be reduced to fewer than tluee(3) directors or
increased to more than five (5) duectors without the unanimous consent of the shareholders.
Voting by Shareholders for Directors shall be conducted in accordanee with 5ection 3.9 above.
Section 4.3. Namination of Directors. At any meeting of the Shareholders of the Corporation
at which directors are to be elected,the chaiiperson of the Shareholders' meeting shall afford all
Shareholders the opportunity to nominate one or znore persons to seive as director, and
nominations shall not be closed until each shareholder present affiirns that that Shareholder has
no additional persons whose names are to be placed in nomination. Eaeh Shareholder may
nominate as many persons for the office of director as there are positions to be filled. No
nomination shall need a second before being eligible for election.
Section 4.4. Term of Office. Each Director shall hold office for the term of one calendar
year, and thereafter until his or her successor is elected.
Section 4.5. Resi�nation of DiY•ector. Any d'u•ector may resign at any time upon wi7tten
notice to the Coiporation. The resignation shall be effective upon receipt thereof by the
Corporation or at such time thereafter as shall be specified in the notice of resignation sent by the
Director to the �oiporation.
Section 4.6. Vacancies in Board of Directors. Vacancies in the Board of Directors, whether
caused by death or resignation, shall be filled by the Shareholders, at a rneeting called by any
Shareholder as set forth in Article III above.
Section 4.7. Powers of Board of Directors. The Board of Directors shall manage the
business of the Coiporation, including the election of Officers of tl�e Corporation. In addition,
the Board of Directors may exercise all powers of the Coiporation and do such lawful acts as are
not required by applicable statute or by the Articles of Incorporation or these By-Laws to be
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REVISED DRAFT P]l2�POSED BOBALT BY-LAWS FOR
,TANUARY 24, 2014 SHAREHOLDERS' MEETING
exercised or done by the Shareholders of the Coiporation. The Board of Directors also may
establish one or inore committees to consist of one or more Directors of the Coiporation.
Section 4.8. Personal Liability of Directors. A Director shall not be personally liable, as
such, for monetary damages for any action talcen, or the failure to take any action, unless the
Director has breached or failed to personal the duties of his or her office under the applicable
provisions of the Pen.nsylvania Business Corporation Law and the breach or failure to pexfoim
constitutes self-dealing, willful misconduct or recklessness. However, the provisions of this
paragraph sha11 not apply to the responsibility or liability of a Director pursuant to any criminal
statute, or to the liability of a Director for the payment of taxes pursuant to law.
Section 4.9. Meetin�s and Attendance of Directors. Meetings of the Board of Directors may
be held at such place within or without the Commonwealth of Pennsylvania as a majority of the
Directors may decide, or as may be designated in the notice calling the meeting. Each newly-
elected Board of D'u•ectors may meet at such place and time as shall be fixed by the Shareholders
at the meeting at which the Duectors are elected, and no notice shall be necessary to the newly-
elected Duectors in order to legally constitute the meeting, or they may meet at such place and
time as may be fixed by the unanimous consent of all the Directors. Special meetings of the
Board of Directors may be called by any Director or by the President of the Coiporation on five
(S) days' notice to each D'u•ector. Notice shall be given in accordance with Section 3.12 above.
Any Director may attend and participate in any meeting of the directors or shareholders of the
Coiporation, including the annual meeting, by attendance in person or by proxy, or attendance
via telephone or internet conference call or video conference. If attending by telephone or
internet conference call or video confexence ("Remote Participation"), such director must give
Notice to all other directors of that director's intent to participate by Remote Participation to all
other duectors at least five(5)days prior to the date set for the shareholders' meeting.
Section 4.10, uorum. A majority of the Directors in office shall be necessary to constitute a
quorum for the transaction of business, and the acts of a majority of the Directors present at a
meeting at which a quorum in present shall be the acts of the Board of Directors. A Director
who is present at a meeting of the Board of Directors at which action on any coiporate matter is
taken shall be presumed to have assented to the action taken unless the Director votes against
such action and files a v�n-itten dissent with the Secretary of the Corporation within five (5) days
after the meeting of the Board of Directors at which such vote was talcen.
Section 4.11. Comnensation. Duectoz•s, as such, shall not receive any salary for their services,
ba�by resolution of the Board 'uy unanimous vote, a fixed sum and expenses of atter�dance may
be allowed for attendance at each regular or special meeting of the Board of Directors. Nothing
hei�ein contained shall be construed to preclude any Director fi•om seiving the Coiporation in any
other capacity and receiving compensation for such service.
Article V: Officers
Section 5.01. lelumber, Qualifications and Designation of Officers. !he Oificers of the
Coiporation shall be elected by the Board of Directors and shall be a President, one or more Vice
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Presidents, a Secretary, one or more Assistant Secretaries, and a Treasurer and one or more
Assistant Treasurers. Officers may be but need not be Directors or Shareholders of the
Coiporation. Any number of offices may be held by the same person at any one time.
Section 5.02. Term. The Of�cers of tlie Coiporation shall be elected annually by the Board of
Duectors and shall serve until their successors �have been elected. Any O�cer elected by the
Board of Directors may be removed by the Board of Duectors whenever in the judgment of the
Board of Directors the best interests of the Coiporation will be seived thereby. An Officer may
resign at any tim upon written notice to the Corporation. The resignation thereof shall be
effective upon receipt thereof by the Coiporation or at such subsequent time as may be specified
in the notice of resignation.
Section 5.03. Compensation. The salary, if any, and coinpensation of all Officers of the
Corporation shall be fixed by the Board of Directors. No officer shall be precluded from
receiving eompensation by reason of the fact that the officer also is a Director of the
Coiporation. �
Section 5.04. Chairnerson of the Board. The Chaiiperson of the Board shall preside at all
meetings of the Shareholders and of the Boud of Directors, and shall perform such other duties
as may frorn time ta time be requested by the Board of Duectors.
Section 5.05. President. The President shall be the Chief Executive Officer of the Coiporation
and shall have general supeivision over the business and operations of the Corporation, subject
to the control of the Board of Directors. The President shall sign and execute, in the name of the
Corporation, bonds, deeds, moi�tgages, cont�acts or other instrmnents. The President may also
serve as Chairperson of the Board if so elected by the Board of Directors.
Section 5.06. Vice-President. The Vice-President shall perform the duties of the President in
the absence of the President and such other duties as may from time to time be assigned to the
Vice-President by the Board of Directors or by the President. More than one Vice-President may
be elected by the Board of Directors.
Section 5.07. Secretary. The Secretary or an assistant secreta�y shall attend all session of the
Board and all meetings of the 5hareholders and shall act as clerlc thereof. The Secretary sha11
record all votes of the Corporation and the minutes of all its transactions in a volume or volumes
to be kept for that purpose, sliall see to it that notices are given and records and reports properly
lcept and filed by ihe �orporaiion as tequired by law, shall be t�e custodiar, of t�e coiporate seal
and see to it that the corporate seal is affixed to all documents to be executed on behalf of the
Coiporation under its seal. An assistant secretary shall pei�form the duties of the Secretary in the
absence of the Secretary or as may be assigned to the assistant secretary by the President.
Section 5.08, TreasureY•. The Treasurer or an assistant treasurer shall have or provide for the
custody of the corporate filnds and securities and shall lceep full and accurate accounts of receipts
and disbursements in books belonging to the Co�poration, and shall lceep the funds of the
Coiporation in accounts in such banlcs and other places of deposit as the Board of Directors may
fi�om time to time designate. The Treasurer shall disburse t17e funds of the Corporation as may be
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ordered by the Board of D'u•ectors, talting proper vouchers or accounts for such disbursements,
and shall render to the Board of Directors on demand an account showing all transactions as
Treastuer, and the financial condition of the Coiporation. On twenty (20) days advance written
notice to the Treasurer, any shaxeholder who is the record owner of more than ten percent (10%}
of the stock of the Corporation may inspect the financial books and records of the Corporation.
Section 5.09. Vacancies. If the o�ce of any Officer becomes vacant for any reason, by
Board of D'u•ectors may elect a successors or successors, who shall hold office for the unexpued
teim of the�acant office.
Article VI: Share Certificates, Transfer and Corporate Records •
Section 6.01. Record of Proceedin�s. There shall be lcept at the registered or other office of
the Coiporation an original or duplicate record of the proceedings of the Shareholders and of the
Directors, and the original or a copy of its By-Laws, including any amendments thereto, certified
by the Secretary.
Section 6.02. Form of Share Certificates. Cei-tificates for shares of the Coiporation shall be in
such form as approved by the Board of Directors, and shall state that the Co�poration is
incoiporated under the laws of the Commonwealth of Pennsylvania, the name of the person to
whom issued, and the number and class of shares that the certificate represents and the date of
issue.
Section 6.03. Share Register. The share register or transfer books and blanlc share certificates
shall be lcept by the Secretary or other person designated by the Board of Directors for that
purpose.
Section 6.04. Transfer of Shares. Transfers of shares shall be made on the share register or
transfer boolcs of the Corporation upon sur'render of the certificate therefor, endorsed by the
person named in the certificate or by the holder's duly authorized representative. No transfer
shall be made inconsistent with any buy-sell agreements or with the provisions of the applicable
provisions of the Uniform Connmercial Code.
Section 6.05. Record Holder of Shares. The Boa.rd of Directors may fix a time,not more than
fifty (50) days,prior to the date of any meeting of shareholders,or the date fixed for the payment
of any dividend or distribution, or the date for t;�e allot�-�ent of rights, or the date wlien any
change or conversion or exchange of shares will be made or will go into effect, as the Record
Date fox the detelmination of the Shareholders entitled to receive notice of, or to vote at, any
such meeting of Shareholders, or entitled to receive payment of any such dividend or
distribution, or to receive any allotment of i7ghts, or to exercise the rights in respect to any such
change, conversion, or exchange of shares. The Board of Directors may close the boolcs of the
Corporation against transfers of shares during the whole or any part of such period, and in such
case, written or printed notice thereof shall be mailed at least ten (10) days before the closing
thereof to each Shareholder of record at the most recent address appearing in the records of the
Coiporation. �
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Section 6.06. Lost,Destroyed or Mutilated �hares. In the event that a share certificate is lost,
desh•oyed or mutilated, a new certificate may be issued therefor upon such terms and indemnity
to the Coiporation as the Board of Directors may prescribe.
Article VII: Indemnification
Section 7.01. Indemnification Right.
The Coiporation shall indemsufy,to the fullest extent now or hereafter peimitted by law, each
duector, officer or employee of the Coiporation who was or is a party to or a witness in or is
threatened to be made a party to or a witness in any ttueatened,pending or completed action,suit or
proceeding, whether civil, criminal, adminishative or investigative, by reason of the fact fihat such
person is or was an authoi7zed representative of the Corporation, against all expenses (including
aftorneys' fees and disbursernents), judgments, fines (including excise taxes and penalties), and
amounts paid in settlement actually and reasonably incuazed by such person in connection with such
action,suit or proceeding.
Section 7.02. Advancement of Expenses.
The Corporation shall pay expenses(including attoineys'fees and disbursements)incuiYed by
a duector or officer of the Corporation refeired to in Section 1 hereof in defending or appearing as a
witness in any civil or criminal action, suit or proceeding described in Section 1 hereof in advance
of the final disposition of such action,suit or proceeding. The expenses incuized by such d'u•ector or
officer in his or her capacity as a director or officer of the Coiporation shall be paid by the
Coiporation in advance of the final disposition of such action, suit or proceeding only upon receipt
of an undei�talcing by or on behalf of such directox or officer to repay all amounts advanced if it shall
ultimately be deteimined that he or she is not entitled to be indemnified by the Corporation because
he or she has not met the standard of conduct set forth in the first sentence of Section 5 hereof.
Section 7.03. Indemnification of Others.
The Corporation may, as deteimined by the Board of Directors fi•om time to time, indemnify
to the fullest extent now or hereafter peimitted by law, any person who was or is a party to or a _
witness in or is threatened to be made a party to or a witness in, or is otherwise involved in, any
tlueatened, pending or campleted actian, suit o�proceedir�g, whether civil, c�im�nal, adr.vr�ish•ative
or investigative, by reason of the fact that he or she is or was an authorized representative of the
Coiporation, against all expenses (including attoineys' fees and disbursements), judgments, fines
(including excise taxes and penalties), and amounts paid in settlement actually and reasonably
incui�•ed by lum in connection witli such action, suit or proceeding. Subject to Section 2 hereof,the
Coiporation may,as detei�rnined by the Board of Directors fi•om time to time,pay expenses incuired
by any such person by reason of his or her participation in any action, suit or proceeding refei7�ed to
in this Section 3 in advance of the fu�al disposition of such action,suit or proceeding.
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Section 7.04. Reliance;Nonexclusive.
Each director and officer of the Corporation shall be deemed to act in such capacity in
reliance upon such rights of indemnification and advancement of expenses as are provided in this
Article. The rights of indemnification and advancement of expenses provided by this Ai�icle shall
not be deemed exclusive of any other i7ghts to which any person seeking indemnification or
advancement of expenses may be entitled under any agreement, vote of stockholders or
disinterested d'u•ectors, statute or otherwise,bofh as to action in such person's o�cial capacity and as
to action in another capaciiy while holding such office or position, and shall continue as to a person
who has ceased to be an authorized representative of tne Coiporation and shall inure to the benefit
of the heus,executors and administrators of such person.
Section 7.05. Determination of Indemnification.
Any indemnification under this Article shall be made by the Coiporation only as authorized in
the specific case upon a detei�nination that indemnification of the authorized representative�is
proper in the circumstances because such person has acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding,had no reasonable cause to believe his or her conduct
was unlawful. Such determination sl�all be made (1)by the Board of Directors by a majoi�ity vote of
a quoLUm c�nsisting of directors who were not parties to such action, suit or proceeding, or (2) if
such quoium is not obtainable, or, even if obtainable, a quoium of disinterested directors so d'u•ects,
by independent legal counsel in a written opinion, or (3) by the stocld�olders. The tet�nination of
any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itseTf, create a presumption that the person did not act in
good faith and in a manner which such person reasonably believed to be in or not opposed to the
best interests of the Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person's conduct was unlawful.
Section 7.06. In�urance.
The Coipo�.'ation may purchase and maintaiiz instu•ance on behalf of any person refei�•ed to in
Section 1 or 3 hereof against any liability asserted against such person and incurred by such person
in any eapacity, or arising out of such person's status as such,whether or not the Corporation would
have the power ta indemnify such person against such liability under the provisions of this Article.
Section 7.07. Borrowing by Coi•poration.
The Board of Directors, without approval of the stockholders, shall have the power to boil•ow
money on behalf of the Corporation, including the power to pledge the assets of the Coiporation,
fi•om time to time to discharge the Coiporation's obligations with i•espect to indeinrufication and the
advancement and reimbursement of expenses refeiled to in this Article VII.
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� REVISED DR.AFT PROPOSED BOBALI BY-LAWS FOR
� JANUARY 24, 2014 SHAREHOLDER5' MEETING
Section 7.08. Continuation of Tndemnity.
For puiposes of this Article, references to "the Coiporation" shall include, in addition to the
resulting coiporation, any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had continued, would have
had power and authority to indemnify its authorized representatives, so that any person who is or
was an authorized representative of such canstituent coiporation, shall stand in the sa�ne position
under this Article with respect to the resulting or surviving coiporation as he or she would have with
respect to such constihient coiporation if its separate existence had continued.
Section 7.09. Authorized Representative.
For the ptu�poses of this Ai�ticle, the teim "authorized representative" shall mean a duector,
o�cer, employee or agent of the Coiporation or of any subsidiaiy of the Coiporation, or a trustee,
custodian, adminish•ator, committeeman or fiduciaiy of any employee benefit plan established and
maintained by the Coiporation or by any subsidiaiy of the Coiporation, or a person seiving another
coi7?oration,partnership,joint veniwe, trust or other enterprise in any of the foregoing capacities at
the request of the Coiporation.
Article VIII: Miscellaneous
Section 8.01. Checls.s and Si�natures. All checks or demands for money and notes of the
Corporation shall be signed by such Officer or Officers as the Board of Directors may from time
to time designate. The Board of Directors may requu•e that each check or deinand for money or
note in excess of a certain amount be signed by two or more Officers of the Corporation.
Section 8.02. Financial Reports. Financial statements or reports shall be sent to the
Shareholders of the Coiporation at least annually, but, except as may be required by law, the scope
of such statements or�'eports shall be within the discretion of the Board of Directors and such state-
ments or repox-ts shall not be requu•ed to have been examined by or to be accompanied by an opinion
of an accountant or firxn of accountants. Eveiy Shareholder shall, upon written demand to the
Secretary of the Coiporation stating the purpose thereof, shall have the iight to examine, in person
or by attorney or agent,the share register,books and records of account, and minutes and records of
the proceedings of the Shareholders and Du•ectors during reasonable business hours, and to make
copies and extracts theren•om at the Sharenolder's own expense,
Section 8.03. Interested Directors or Officers. A contract or transaction between the
Coiporation and one or more of its Directors or Officers or beiween the Coiporation and anothex•
corporation or business enteiprise in which one or more of the Coiporation's Directors or Officers
Have a fmancial or other interest, shall not be void or voidable solely for that reason, or solely
because the officer or director is �x•esent at or participates in the meeting of the Board of Directors
that authoi7zes the contract or transaction, or solely because the votes of tllat intez�ested Director or
Officer are coun�ed for that purpase, so long as the m�aterial facts as to the relationship or interest
and as to the contract or transaction are disclosed to and are known to the Boa�•d of Directors and the
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, �
REVISED DRAFT PR�POSED BOBALI BY-LAWS FOR
JANUARY 24, 2014 SHAREHOLDERS' MEETING
Board of Directors authoi7zes the contract or i�•ansaction by the affumative vote of a majorify of the
disinterested members of the Bovd of Directors, even though the disinterested members may be
less than a quoium, that the material facts as to the D'u•ector's relationship or interest as to the
contract or transaction are disclosed to and are lcnown by the Shareholders entitled to vote thereon
and the contract or h•ansaction is approved in good faith by vote of those Shareholders.
Article IX: Amendment of By-Laws
The authority to adopt, amend or repeal these By-laws of the Coiporation is expressly confei7•ed
upon the Shareholders of the Coiporation, who may talce such action by the aff'u-mative vote of a
majority of the Shareholders at any regular or special meeting duly convened a$er notice of that
puipose.
(EIo1D of Praposed By-Lawsl
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LISA MORGAN, individually and in her : IN THE COURT OF COMMON
capacity as Egecutor of the ESTATE O� : PLEAS OF DAUPHIN
BARSARA McKIlViMIE MUMMA and : COUNTY, PENNSYLVANIA
Trustee of the RESIDUARY TRUST OF :
ROEERT M. MUMMA, SR. .
Plaintiff, .
v. : No. 2010-CV-11490�EQ
ROSERT M. MUMMA II, .
EARSAR.A MANN MUNIlVIA, and .
LINDA MANN MUIVIMA .
Defendants, .
and .
BOBALI CORPORATION, .
Nominal Defendant. : Civil Action —Equity
ORDER OF COURT
AND NOW, this day of , 2014, upon consideration of
Defendant Barbara M. Mumma's Motion to Determine Voting �ights in Certain
Shares of Bobali Corporation Stock or, in the 1�ltei-native, to Stay Proceedings to
Peimit Such Determination by the Court of Common Pleas of Cumberland County,
Orphans' Court Division and any responses thereto, it hereby is ORDERED,
ADJUDGED and DECREED that said Motion is G�ZANTED. The tally of the
votes cast at the Bobali Corporation shareholders' meeting held January 24, 2014
concerning the election of directors is hereby revised to confonn to the wishes of
those persons holding an equitable and beneficial interest in the shares of Bobali
-21-
Coiporation stock currently being held in the Residuary Trust created by the Last
Will and Testament of Robert M. Munzma. Therefore, the three Directors elected
as Directors of Bobali Coiporation at the January 24, 2014 meeting of the
shareholders are Robert M. Mumma, II, Lisa M. Morgan and Barbara M. Mumma.
The Board of Directors is hereby ORDERED to schedule a meeting of the Board
of Directors within the next thirty (30) days to elect officers of the corporation and
to report back to this Court as to the election of officers.
BY THE COURT,
Bratton, J.
Distribution:
Richard F. Rinaldo, Esquire
Williams Coulson Johnson Lloyd
Parker & Tedesco, LLC
16th Floor, One Gateway Center
420 Fort Duquesne Blvd.
Pittsburgh, PA 15222
Matthew M. I�aar, Esq.
Saul Ewing
2 Noi-th Second �treet, 7�`Floor
Hanisburg, PA 17101
(Distribution continued next page)
-22-
, �
Robert B. Eyre, Esquire
Foehl & Eyre, P.C.
27 E. Front Street
Media, PA 19063
Robert M. Mumma II
Box F
Grantham, PA 17027 .
Linda M. Mumma
P.O. Box 30436
Bethesda. NID 20824
Frederick R. Martsolf, Esquire
Suite 201
2080 Linglestown Road
Harrisburg, PA 17110
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, ,
LISA MORGAN, individually and in her : IN THE COURT OF COMMON
capacity as Executor of the ESTATE OF : PLEAS OF DAUPFIIN
BARBARA McKIlVIMIE MUMMA and : COUNTY, PENNSYLVANIA
Trustee of the RESIDUARY TRUST OF :
ROSERT M. MUMMA, SR. .
Plaintiff, .
v, : No. 2010-CV-11490-EQ
ROBERT M. MUMMA II, .
$ARBARA MANN MUNIlVIA, and .
LINDA MANN l��UNiMA •
Defendants, .
and •
BOBALI CORPOR.ATION, .
Nominal Defendant. : Civil Action—Equity
ALTERNATIVE ORDER OF COURT
AND NOW, this day of , 2014, upon consideration of
Defendant Barbara M. Mumma's Motion to Detennine Voting l�ights in Certain
Shares of Bobali Corporation Stock or, in the Alternative, to Stay Proceedings to
Permit Such Determination by the Court of Common Pleas of Cumberland County,
Orphans' Court Division and any responses thereto, it hereby is ORDERED,
1�DJCTDGED and DECREED that the alternative relief requested by said Motion is
GRANTED. Further Proceedings in this Court are hereby stayed in order to
provide the Court of Common Pleas of Cumberland County, Orphans' Court
Division, in In �e Estate of Robe�t M. Mumma, Deceased, Case No. 21-86-398, an
-24-
opportunity either to order a distribution of the shares of stock in �obali
Corporation cunently held in the Residuary Trust created by the Last Will and
Testament of Robert M. Mumma or to declare whether the Trustee, Lisa Morgan,
or the four siblings who hold the equitable and beneficial interest in said shares of
stock in the family corporation, have the right to vote or to direct the voting of said
shares.
BY THE COURT,
Bratton, J.
Distribution:
Richard F. Rinaldo, Esquire
Williams Coulson Johnson Lloyd
Parker & Tedesco, LLC
16�`Floor, One Gateway Center
420 Fort Duquesne Blvd.
Pittsburgh, PA 15222
Matthew M. Haar, Esq.
Saul Ewing
2 North Second Street, 7th Floor
Harrisburg, PA 17101
(Distribution continued next page)
-25-
, �
Robert B. Eyre, Esquire
Foehl & Eyre, P.C.
27.E. Front Street
Media, PA 19063
Robert M. Mumma II
Box F
Grantham, PA 17027
Linda M. Mumma
P.O. Box 30436
Bethesda. MD 20824
Frederick R. Martsolf, Esquire
Suite 201
2080 Linglestown Road
Harrisburg, PA 17110
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�
CERTIFICATE OF SERVICE
I hereby certify that on January 3 0, 2014, a true and con ect copy of the
foregoing Defendant Baxbara M. Mumma's Motion to Determine Voting Rights in
Certain Shares of Bobali Corporation Stock or, in the Alternative, to Stay
Proceedings to Permit Such Determination by the Court of Common Pleas of
Cumberland County, Orphans' Court Division was served by first-class United
States mail, postage prepaid, to the following persons:
Matthew M. Haar, Esq.
Saul Ewing
2 North Second Street, 7�Floor
Harrisburg, PA 17101
mhaar@saul.com
Attorneys fo�Plaintiff
Robert S. Eyre, Esquire
Foehl & Eyre, P.C.
27 E. Front Street
Media, PA 19063
Robert M. Mumma II
Box F
Grantham, PA 17027
Linda M. Mumma
P.O. Box 30436
Bethesda. MD 20�24
(by regular mail)
lmann333 @gmail.com
Defendant P�o Se
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�
Frederick R. Martsolf, Esquire
Suite 201
2080 Linglestown Road
Harrisburg, PA 17110
Atto�ney fo�Dauphin County Tux Claim Bureau
�
�
chard F. Rinaldo
-2�-
LISA MORGAN,individually and in her : IN THE COURT OF COMMON PLEAS
Capacity as Executrix of the ESTATE OF : DAUPHIN COUNTY,PENNSYLVAr1IA
BARBARA MCKIMMIE M[JMMA and .
Trustee of tlie RESIDUARY TRUST OF . � �
ROBERT M.1��1JMMA, SR., .
Plaintiff .
v. . � .
. c� = _
• �:v �
ROBERT M.MUMMA,II, : N0. 2010-CV-11490-EQ � i��+ -- . �
�T C.J� ...� '
BARBARA MANN MIJMMA,and • �"��- .–. ,__�:. ; :
LINDA MANN MUMMA, , �`-`- — -.:- .
`� L},..
: � ��� '� --,�-�
�.. ;---
Defendants . _- '�
� . . � �
and , `..
BOBALT CORPORATION, ' .
Nominal Defendant : CNIL ACTION–EQUITY
ORDER .
. �
/ �
AND NOW,this /� day of February,2014,upon consideration of Defendant
. 41 ' . .
Barbara Mann Mumma's "Motion to Detei7nine Voting R.ights in Cei�tain Shares of Bobali
Corporate Stocic or, in the altei�native, to Stay Proceedings to Permit such Determination by the
Court of Common Pleas of Cumberland County, Orphans' Cotu�t Division", further proceedings
in this case are hereby STAYED for a period of thirty(30) days to allow the parties to file in the ±
�rphans' Coui-t of the Cumberland County Court of Common Pleas the motion/petition to ;
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determine the voting rights of those shares of Bobali Coiporation we have previously deteimined '
i
are held by the Residuary Trust of Robert M. Mumma, Sr. Proof of filing of such
motion/petition shall be simultaneously forwarded to the undersigned in order to demonst�ate
that the pai�ties continue to malce all reasonable efforts to comply with this Court's December 31,
2013 Order.
� BY THE COURT:
J
• f
Bruce F. Bratton,J.
Distribution:
The Hon.Biuce F, Bratton .
Matthew M. Haax,Esq., 2 N. Second Street, 7th Floor,Harrisburg,PA 17101
Richard F. Rinaldo,Esq., One Gateway Center, 16th Floor,Pittsbi.ugh,PA 15222
Robert B. Eyre,Esq.,27 E: Front St.,Media,PA 19063
Linda M. Mumma,P.O. Box 30436,Bethesda,MD 20824
Robert M.Mumma,II,Box 58,Bowmansdale,PA 17008
Robert M. Mumma,II,6880 Southeast Harbor Circle, Stuart,FL 39466
��� 7 � Z���
l f�e�e6y c�rfify tl���g th�foregoing fs a
. �rue and coreect copy of th�originaf
�iled.
�a�... -t-a�
• 43rs�thon f,�r�
IN RE: : IN THE COURT OF COMMON
: PLEAS OF CUMBERLAND
Estate of Robert M. Mumma, Deceased : COUNTY, PENNSYLVANIA
: No. 21-86-398
: Orphans' Court Division
RULE TO SHOW CAUSE
AND NOW, this day of , 2014, upon consideration of
Defendant Barbara M. Mumma's Petition for Partial Immediate In-kind
Distribution From Residuary Trust or, in the Alternative, to Declare and Determine
Voting Rights in Certain Shares of Stock of Bobali Corporation Currently Held in
the Residuary Trust Created Pursuant to the Last Will and Testament of Robert M.
Mumma, Deceased, a Rule to Show Cause is issued upon Lisa M. Morgan, both
individually and in her capacity is Trustee of the Residuary Trust, upon Robert M.
Mumma II and upon Linda Mumma to show cause, if any there be, why the
Petition should not be granted.
RLTLE returnable 20 days after service.
BY THE COURT,
Oler, S.J.
Distribution on following page:
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, , , �
Richard F. Rinaldo, Esquire
Williams Coulson Johnson Lloyd
Parker & Tedesco, LLC
16th Floor, One Gateway Center
420 Fort Duquesne Blvd.
Pittsburgh, PA 15222
Ivo V. Otto, III, Esquire
George B. Faller, Jr., 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
Robert B. Eyre, Esquire
Foehl & Eyre, P.C.
27 E. Front Street
Media, PA 19063
Robert M. Mumma II
Box F
Grantham, PA 17027
Linda M. Mumma
P.O. Box 30436
Bethesda. NID 20824
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V CRIF[CATION
I, Barbara M. Mumma, hereby verify that the foreg�ing Pctition is based
upon infoimation which has been gathered by me and by my counsel. 1 have
reviewed the Petition and the factual statements set foith thcrein are true and
con•ect,to the best of my knowledge,infomlation and beliei: I understand that ti�is
statement and verification are made subject to the penalties of 18 Pa. C.S. § 4904
relating to unsworn falsification to authorities.
�.�a��-�-�--`ysz.-.
Barbara M.Mumma
—___ ____ _
IN RE: : IN THE COUI�T UF COMMON
: PLEAS O�' CUMBERLAND
Estate of Robert M. Mumma, Deceased : C4UNTY,PENNSYLVANIA
:
: No. 21-86-398
: Orphans' Court Division
PETITION OF BARBARA M. MUNrMA FQR PARTIAL IMMEDIATE
�AT-KIND DISTRIBUTI4N FRUM RESIDUARY TRUST
UR,IN THE ALTERNATIVE,
TO DECLARE AND DETERMINE VOTING �tIGHTS IN CERTAIN
SHARES UF STOC� 4F BOBALI CORPORATION CURRENTLY HELD
IN THE RESIDUARY TRUST CREATED PURSUANT TU THE LAST
WILL AND TESTAMENT OF RUBERT M. MUMMA,DECEASED
� � , y.
CERTIFICATE OF SERVICE
I hereby certify that on March 10, 2014, a true and correct copy of the
foregoing Defendant Barbara M. Mumma's Petition for Partial Immediate In-kind
Distribution From Residuary Trust or, in the Alternative, to Declare and Determine
Voting Rights in Certain Shares of Stock of Bobali Corporation Currently Held in
the Residuary Trust Created Pursuant to the Last Will and Testament of Robert M.
Mumma, Deceased, was served by first-class United States mail, postage prepaid,
to the following persons:
Ivo V. Otto, III, Esquire Brady L. Green, Esquire
George B. Faller, Jr., Esquire Wilbraham, Lawler & Buba
Martson Law Offices 31 St Floor
10 East High Street 1818 Market Street
Carlisle, PA 17013 Philadelphia, PA 19103
Robert M. Mumma II Robert B. Eyre, Esquire
Box F Foehl & Eyre, P.C.
Grantham, PA 17027 27 E. Front Street
Media, PA 19063
Linda M. Mumma
P.O. Box 30436
Bethesda. MD 20824
c�
Richard F. Rinaldo
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