HomeMy WebLinkAbout04-07-14 � Y
Ivo V. Otto III, Esquire
I.D. No. 27763 0 � �
George B. Faller Jr., Esquire G -� rn ��'-,
I.D. No. 49813 � °� � �' °
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Katie J. Maxwell, Esquire �rn � c� �' � °
I.D. No. 206018 i�' � � --� �-� �
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MARTSON LAW OFFICES }' U'- �� .-�' `�'
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Attorneys for Lisa Morgan, Co-Executrix and �" -�
Co-Trustee Under the Will of Robert M. Mumma
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
IN RE ESTATE OF . ORPHANS' COURT DIVISION
ROBERT M. MUMMA, .
Deceased. . N0. 21-86-398
ANSWER WITH NEW MATTER OF LISA M. MORGAN TO
PETITION OF BARBARA M. MUMMA FOR PARTIAL IMMEDIATE
IN-HIND 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
AND NOW, comes Lisa M. Morgan ("Lisa"), as trustee of the Residuary Trust
established pursuant to the will of her late father, Robert M. Mumma, Sr. ("Mr. Mumma, Sr."),
answers the 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 (the "Petition"), as follows:
1-6. Admitted.
7. Admitted in part, denied in part. Lisa admits that since Barbara M. Mumma
(`Barbara")'s appointment as co-executor, there has not been a need for her to "cooperate"
regarding the administration of the Mr. Mumma, Sr.'s Estate. Indeed, the Estate was closed in
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2003. As counsel to Barbara McK. Mumma ("Mrs. Mumma") and Lisa explained in the course
of hearings, "The Estate is closed for federal tax purposes. It is closed in the sense that there are
no more assets to administer. In that sense, it's closed. There has been no final adjudication
settling the executor's account. In that sense, it's still open." (O'Connor, N.T. June 22, 2011, at
1804, 1865-66). The only reason the accounts filed by Lisa and Lisa have not yet been
confirmed — and the Estate closed for all purposes — is that Barbara and Robert M. Mumma, II
("Robert II") have filed objections to the accounts. As a consequence, the prospect of
"cooperation" on any open matters regarding the Estate is unrealistic. Lisa denies that she has
"ignored" Barbara or that she has failed to provide her with any information to which she is
entitled regarding the Estate.
8. Admitted in part, denied in part. Lisa admits that Auditor Joseph D. Buckley filed a
report on August 7, 2013, that he subsequently resigned, that Barbara, Robert II and Lisa filed
objections to the report, that the parties submitted briefing in support of their objections, that the
Court heard oral argument on those objections on November 12, 2013, and that the Court has not
yet ruled on the objections. Auditor Buckley's report, the submissions of the parties, and any
orders entered on the docket in this proceeding are in writing and speak for themselves, and Lisa
denies any characterizations of them.
9. Admitted.
10. Admitted.
11. Admitted in part, denied in part. Lisa admits that this paragraph accurately quotes
portions of a paragraph of Mr. Mumma, Sr.'s will. That paragraph and the remaining portions of
the will are in writing and speak for themselves, and Lisa therefore denies all characterizations of
them.
12. Denied. The allegations of this paragraph constitute legal conclusions to which no
response is required, and they purport to characterize Mr. Mumma, Sr.'s will, which is in writing
and speaks for itself. Lisa therefore denies all such allegations. Moreover, for the reasons more
fully set forth in her New Matter below, which she incorporates by reference, Lisa denies that the
provisions of Mr. Mumma, Sr.'s will required the "payment over to" the remaindermen of the
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Residuary Trust of any assets at any time prior to the present, or that they require such "payment
over" at this time.
13. Admitted. By way of further response, their remain pending numerous objections to
accounts and objections filed by Barbara and Robert II which, among other things, contest such
fundamental issues as whether the Residuary Trust owns certain assets. Among other disputes,
Barbara and Robert II have claimed before this Court and/or proceedings in Dauphin County that
the Residuary Trust does not legitimately own any stock in Bobali. At least until such disputes
are resolved, and distribution of assets from the Residuary Trust is infeasible.
14. Denied. Lisa is without knowledge or information as to Barbara's beliefs. She
denies the interpretation and characterizations of the import of Mr. Mumma, Sr.'s will, and
denies that "immediate distribution" of Bobali stock from the Residuary Trust is appropriate.
See also Lisa's response to paragraph 13, which she incorporates by reference.
15. Admitted in part, denied in part. Lisa admits that Bobali and its ownership has been
a subject of the cited litigation in Dauphin County, and that a non jury trial took place before
Judge Bratton in 2013. The pleadings, testimony, briefs and positions of the parties, and the
rulings and orders of the court, in that case are in writing and speak for themselves, and Lisa
denies all characterizations of them. By way of further response, in her original filing Lisa
requested appointment of a custodian or, in the alternative, a liquidating receiver for Bobali.
16. Denied. Lisa does not know what is meant by "undisputed at the trial of that action,"
but she denies that neither she nor Mrs. Mumma called a meeting of Bobali's shareholders at any
time after 1994. On the contrary, and as shown by evidence and testimony presented before the
Auditor, Mrs. Mumma and Lisa noticed a shareholders' meeting in 2000 for the purpose of
addressing ways to address the corporation's inability to generate funds to pay real estate taxes.
There followed that year several meetings on that subject, which were attended by, among
others, Barbara Mumma. (See L. Morgan Testimony, Oct. 29, 2009, N.T. at 3086-89; Exhs T-
175, T-176). Lisa admits that between those meetings and 2011, none of the shareholders of
Bobali called for a meeting of Bobali shareholders. Lisa admits that bylaws adopted through a
vote of the shareholders of Bobali provided for a single director, that Mrs. Mumma held that
position upon her death, that Lisa was president of the corporation and its only officer at the time
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of Mrs. Mumma's death, and that neither Lisa nor the other shareholders of Bobali called a
meeting of its shareholders for the express purpose of electing new directors immediately
following Mrs. Mumma's death. Lisa denies the remaining allegations of this paragraph.
17. Admitted in part, denied in part. Lisa does not know what is meant by the term
"principal issue" as used in this paragraph, and therefore denies it. Lisa admits that there have
been longstanding claims by other shareholders that the ownership of the corporation was not as
Mrs. Mumma and Lisa believe it to be, and that the ownership of Bobali was among the issues in
the litigation before Judge Bratton. However, the unmanageability of the corporation resulting
from the actions of other shareholders also was a significant issue addressed in the Dauphin
County proceedings, and provided the basis for Lisa's request for the appointment of a custodian
or a liquidating receiver.
18. Admitted.
19. Admitted in part, denied in part. Lisa admits that Judge Bratton's order did not
contain any statement as to "who had the right to vote those shares. . . ." She denies that there
was anything "unfortunate" about that fact, that it would have been appropriate for the Dauphin
County court to have addressed that issue, or that there is any meaningful room for dispute on the
issue. As Judge Bratton found, the Residuary Trust owns slightly in excess of 14% of the
outstanding stock of Bobali, and Lisa, as sole trustee of the Residuary Trust, has both the
authority and the duty to vote that stock in accordance with her best judgment as to what is in the
best interests of the Residuary Trust. Lisa further denies that there is anything in Mr. Mumma,
Sr.'s will that dictates that the remaindermen of the Residuary Trust have the right to control or
direct disposition of trust assets before they have been distributed, for the reasons set forth more
fully in her New Matter below, which she incorporates herein by reference.
20. Admitted in part, denied in part. Lisa admits that this paragraph correctly quotes a
few lines from the transcript of the Dauphin County proceedings. That transcript is in writing
and speaks for itself, and all Lisa denies all characterizations of it. Lisa admits that a meeting of
some of the shareholders of Bobali occurred on January 24, 2014, at the Crowne Plaza Hotel in
Harrisburg. She is unable to understand what is being alleged in, and therefore denies all
allegations in, the remainder of this paragraph.
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21. Admitted in part, denied in part. Lisa admits that: she did not personally attend the
January 24, 2014, meeting of the Bobali shareholders; that she gave proxies for herself, Mrs.
Mumma's estate and the Residuary Trust to Matthew Haar, Esquire; and that Mr. Haar, Robert
II, Barbara (telephonically) and her counsel attended the meeting. She further admits that,
because Linda M. Mumma ("Linda") did not attend the meeting, the shares as to which Mr. Haar
held proxies represented a majority of the shares represented at the meeting, and that Mr. Haar
voted the shares subject to the proxies in favor of the adoption of certain bylaws and the election
of certain directors, who included Lisa and George Faller, Esquire. Lisa also admits that Mr.
Haar and Mr. Faller have acted as her counsel of record in various matters. Lisa denies that there
was anything "purported" or about Lisa's issuance of proxies to Mr. Haar, or about Mr. Haar's
ability to vote stock held by the Residuary Trust. Lisa lacks knowledge regarding whether and
therefore denies that "there is substantial question as to whether [Linda] ever actually received
notice of the shareholders' meeting at all." Notice was sent to Linda in accordance with any and
all requirements of the Bobali bylaws and the Pennsylvania Business Corporation Law.
22. Admitted in part, denied in part. Lisa admits that Barbara filed the referenced
Motion. That Motion is in writing and speaks for itself, and Lisa denies all characterizations of
it. She is without knowledge regarding, and therefore denies, the allegations of this paragraph
regarding Barbara's motives for filing the document.
23. Admitted in part, denied in part. Lisa admits that Barbara filed the referenced
Motion. That Motion is in writing and speaks for itself, and Lisa denies all characterizations of
it. She also admits (as averred in footnote 3) that she may properly vote Bobali stock owned by
Mrs. Mumma's estate, of which Lisa is the sole executor and a beneficiary. Lisa denies that
Barbara, Robert II and Linda are the "beneficial owners" of Bobali stock held by the Residuary
Trust; rather, as remaindermen they hold a beneficial interest in the Residuary Trust, and not in
any particular assets it may own. Mrs. Morgan also denies that Barbara, Robert II and Linda
"should have the right to vote or direct the vote" of Bobali stock owned by the Residuary Trust;
rather, that power is reserved for the trustee. 20 Pa C.S.A § 7780.5 By way of further response,
Lisa incorporates by reference her responses to paragraphs 13 and 19 above.
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24. Admitted in part, denied in part. Lisa admits that Judge Bratton entered the
referenced Order. That Order is in writing and speaks for itself, and Lisa denies all
characterizations of it.
25. Admitted in part, denied in part. Lisa admits that she filed the referenced document,
entitled Response in Opposition to 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, and that this paragraph correctly quotes portions of it, a copy
of which (without its voluminous exhibits) is attached as Exhibit A. That document is in writing
and speaks for itself, and Lisa denies all characterizations of it.
26. Admitted in part, denied in part. Lisa admits that this paragraph correctly quotes a
sentence from this Court's August 30, 2013 opinion. That opinion is in writing and speaks for
itself, and Lisa denies all characterizations of it.
27. Admitted in part, denied in part. Lisa admits that the referenced account regarding
the Residuary Trust reflects, in accordance with required procedures, a book value of$32,971.64
for the Bobali stock owned by the Residuary Trust. Lisa denies, however, that this figure
represents the fair value of the Residuary Trust's interest in Bobali. In fact, as detailed in
evidence and testimony presented to the Auditor, Mrs. Mumma and Lisa, nearly two decades
ago, reached agreements with a potential buyer to sell Bobali stock andlor assets for values
suggesting a significantly higher value for the Residuary Trust's interests, which potential sales
were thwarted by the efforts of Robert IL Moreover, Lisa denies that she would face "little or no
risk" in distributing Bobali stock, or that there exists any legitimate basis for an order directing
that the remaindermen of the Residuary Trust may vote or direct the vote of Bobali stock owned
by the Residuary Trust. Lisa also denies all remaining allegations of this paragraph, among other
things as they constitute legal conclusions to which no response is required.
28. Denied. To the extent the allegations of this paragraph constitute or embody legal
conclusions, no response is required and they are denied. Lisa denies all allegations regarding
what actions Barbara might take in the future and/or other hypothetical circumstances, as to
which she lacks sufficient knowledge to respond.
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29. Denied. Lisa denies all allegations regarding hypothetical circumstances, as to which
she lacks sufficient knowledge to respond.
30. Denied. Lisa lacks knowledge or information as to the purported "position" of
Robert II regarding the subject matter of this paragraph or whether he "objects" to any potential
actions or steps with respect to Bobali stock owned by the Residuary Trust, and she therefore
denies all allegations as to these matters.
31. Denied. Lisa lacks knowledge or information as to the purported "position" of Linda
regarding the subject matter of this paragraph or whether she "objects"to any potential actions or
steps with respect to Bobali stock owned by the Residuary Trust, and she therefore denies all
allegations as to these matters.
32. Denied. Lisa lacks any knowledge or information as to what "conceivably" might
occur in a hypothetical circumstance. In addition, the allegations regarding whether Lisa might
ultimately be held liable for a distribution of shares of stock in Bobali owned by the Residuary
Trust constitute legal conclusions, at least in part, which Lisa therefore denies. Moreover,
whether or not Lisa could ultimately be held liable for any distribution of such stock to the
remaindermen of the Residuary Trust has shown that litigation regarding her conduct in that
regard is, to say the least, hardly unlikely, particularly since Robert II and/or Barbara have at
times contested whether the Residuary Trust owns any Bobali stock. Indeed, footnote 4 of the
Petition states that "it is [Robert II]'s position that the [Bobali] 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." Thus, contrary to Barbara's attempts to
minimize the prospect of later litigation, she admits (a) that her view regarding the historical
ownership of Bobali stock differs fundamentally from Robert II's and (b) that he contends that
Mrs. Mumma and Lisa acted improperly by ever acting as though the Residuary Trust owned any
Bobali stock.'
' Another lingering impediment to any distribution of any Residuary Trust assets to Robert II is his filing
in January of an irrevocable disclaimer of his interest under Mr. Mumma, Sr.'s will. The disclaimer had
the effect of substituting Robert II's three children minor as remaindermen of his share of the Trusts. The
validity of Robert II's subsequent attempt to revoke that disclaimer has never been determined in a
proceeding involving persons having proper standing, and therefore any distribution of Residuary Trust
assets to Robert II could subject Lisa to liability should the revocation ultimately be determined to have
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33. Admitted in part, denied in part. Lisa admits — and, indeed, filed the Dauphin
County litigation as a result —that the ongoing challenges to the ownership of and/or the right to
vote Bobali stock has rendered the corporation essentially unmanageable, hence her request for a
liquidating receiver. Lisa does not understand what is meant by the undefined phrase "family-
owned corporation with the four Mumma siblings as the shareholders," and therefore denies the
allegation that such phrase "unquestionably" describes Bobali. In fact, at the time of the death of
Mr. Mumma, Sr., none of his children owned any Bobali stock; rather, Robert II, Barbara, Linda
and Lisa became shareholders of Bobali only upon the completion of a downstream merger of
Middle Park, Inc. into Bobali in 1987, which merger Robert II and at times Barbara have argued
for years in multiple venues — among others before Auditor Buckley — was not properly
authorized, was "fraudulent" andlor never occurred. Lisa admits that Judge Bratton held that
Linda had sold some of her Bobali stock to Mrs. Mumma, whose estate now owns those shares.
34. Admitted in part, denied in part. Lisa admits that the figures presented in the chart in
this paragraph accurately reflect the impact of a distribution of the Bobali stock owned by the
Residuary Trust to its four remaindermen in equal shares. Lisa denies that any such distribution
is inevitable, or that she will ever be required, as trustee of the Residuary Trust, to distribute the
Bobali stock in accordance with the hypothetical set forth in this paragraph, since there is no
obligation under either the law or the PEF Code that she distribute all assets in the Residuary
Trust to the remaindermen on a pro rata basis, so long as the values of the assets ultimately
received from the Residuary Trust by each remainderman are equal. By way of further response,
Lisa incorporates by reference her answer to paragraph 19 above.
35. Admitted in part, denied in part. Lisa admits that in connection with the January 24,
2014, meeting of Bobali's shareholders, she held — and asserted — the right to vote the Bobali
shares owned by the Residuary Trust, and that Mr. Haar voted those shares in accordance with
been ineffective. The Superior Court has recognized the significance of the revocation issue: "We note
that there is some dispute over whether [Robert II] actually possesses a legitimate property interest in
decedent's Estate. As the trial court noted, one threshold question is whether [Robert II] remains a
beneficiary in light of his January 6, 1987 filing of an irrevocable disclaimer of his interest under the
decedent's will." In re Estate of Robert M. Mumma, No. 856 MDA 2005, Memorandum at 12 n.l (Pa.
Super. Mar. 7, 2006). Case law regarding the revocability of disclaimers suggests that Lisa cannot safely
proceed on the assumption that Robert II's disclaimer revocation ultimately would be upheld. See In re
Estate of Ciaffoni, 787 A.2d 971 (Pa. Super. 2001); Williams Estate, 22 Fiduc. Rep. 2d 87 (C.P. Sullivan
2002); Pedrick Estate, 19 D.&C.4th 360 (C.P. York 1993).
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that right. Lisa further admits that she, Mrs. Mumma's estate and the Residuary Trust own more
Bobali stock than do Barbara and Robert II together. Lisa denies that such voting constituted a
"tactic" or was in any way improper. Lisa also denies that Barbara and Robert II are "beneficial
owners" of Bobali stock owned by the Residuary Trust. By way of further response, Lisa
incorporates by reference herein her answer to paragraph 23 above.
36. Denied. The allegations of this paragraph constitute legal conclusions, to which no
response is required, and which Lisa therefore denies. Lisa specifically denies that she (or Mr.
Haar as her proxy) lacked the authority to vote Bobali stock owned by the Residuary Trust.
37. Admitted in part, denied in part. Lisa admits that Barbara and Robert II objected at
the January 24, 2014, meeting to Mr. Haar's voting the Bobali stock owned by the Residuary
Trust. The events at that meeting were transcribed, and therefore speak for themselves, and Lisa
denies any characterization of those events and/or of the purported implications of various
hypothetical developments which could have occurred at the meeting. Lisa expressly denies that
there was any impropriety in the conduct of the meeting or in the manner in which Mr. Haar
voted the Bobali stock owned by the Residuary Trust.
38. Denied. The allegations of this paragraph constitute and/or incorporate legal
conclusions, to which no response is necessary and which Lisa therefore denies.
WHEREFORE, Lisa requests that the Petition be denied.
NEW MATTER
By way of new matter to the Petition, Lisa avers as follows:
39. Bobali is a Pennsylvania corporation whose registered office is located in Dauphin
County.
40. In 2010, Lisa, in her own right, as trustee of the Residuary Trust, and as executrix of
the estate of Mrs. Mumma, commenced an action in the Court of Common Pleas of Dauphin
County captioned Lisa Morgan v. Robert M. Mumma, II et al., No. 2010-CV-11490-EQ (the
"Dauphin County Case").
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4 L In her Complaint in the Dauphin County Case, Lisa sought appointment of a
custodian to preserve the assets of Bobali or, in the alternative, of a liquidating receiver, in light
of the functional unmanageability of the corporation due to longstanding disputes among its
shareholders.
42. Lisa individually, the Residuary Trust, and the estate of Mrs. Mumma all are
shareholders of Bobali.
43. The Defendants in the Dauphin County Case—Robert II, Barbara and Linda—are the
other shareholders of Bobali.
44. Following a bench trial, Judge Bratton entered an Order in the Dauphin County Case
on December 31, 2013.
45. In his Order, Judge Bratton stated, inter alia, his finding that the Residuary Trust is
the owner of 1.4044 shares (or 14.044%) of the outstanding stock of Bobali.
46. Judge Bratton's determination is consistent with the Third and Interim Account filed
by Mrs. Mumma and Lisa with respect to the Residuary Trust, which reflects the ownership of
just over 14% of Bobali's stock.z
47. Judge Bratton also 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
directors and the appointment of officers to run Bobali. Absent such notice from counsel, we
shall thereafter appoint a custodian or a liquidating receiver of the Court's choosing by separate
Order.
48. A meeting of Bobali's shareholders was held on January 24, 2014. All of the
shareholders except Linda attended personally and/or through counsel.
z Similarly, Judge Bratton's findings regarding both the ownership of Bobali and various assertions by
Robert II and Barbara regarding its history, reflected in a Memorandum decision dated December 31,
2013, are consistent with the findings of Auditor Joseph Buckley on those same issues in his August 5,
2013, Report to this Court. (See, e.g., Findings of Fact 303-05, 327-34).
10
49. At the meeting, in the election of directors, Lisa, as trustee, voted the Bobali shares
owned by the Residuary Trust.
50. At the meeting, Robert II and Barbara objected to Lisa's voting of the shares owned
by the Residuary Trust on the grounds that they alleged hold "beneficial interests" in those
shares (as remaindermen of the Residuary Trust). Robert II and Barbara claimed that they were
entitled to direct Lisa as to how to vote those Bobali shares owned by the Residuary Trust in
which they claimed to hold "beneficial interests."
51. On January 30, 2014, Barbara filed in the Dauphin County Case a "Motion to
Determine Voting Rights in Certain Shares of Bobali Corporation Stock or, in the Alternative, to
Stay Proceedings to Permit Such Determination by [this CourtJ." In that Motion (at 9-10), she
stated, inter alia, as follows:
Barbara Mumma asks that this Court decide in her favor the question of whether she has
the right to direct the vote of Bobali shares in which Barbara Mumma has a beneficial
interest but which have not yet been distributed to her and are being held in the Residuary
Trust . . . despite the fact that according to her father's will, the Trust was expressly
directed to terminate and the assets distributed [sic] on the death of[Mrs.] Mumma. . . .
52. On February 10, 2014, Judge Bratton entered in the Dauphin County Case an Order
providing that "further proceedings in this case are hereby STAYED for a period of thirty (30)
days to allow the parties to file in in the Orphans' Court of the Cumberland County Court of
Common Pleas [a] motion/petition to determine the voting rights of those shares of Bobali we
have previously determined are held by the Residuary Trust. . . ."
53. The assertion of that Lisa is required by Mr. Mumma, Sr.'s will immediately to
distribute assets owned by the Residuary Trust or otherwise to conduct herself as though such
distribution had occurred, has been presented by Robert II and Barbara to, and rejected by, this
Court.3
3 Nor is it the first time the argument has been presented to the Dauphin County Court. In an action he
filed in 2011, Robert II sought to persuade Judge Bratton to adopt the interpretation of Mr. Mumma, Sr.'s
will and the obligations it imposes on Lisa that Barbara posits. Judge Bratton sustained preliminary
objections filed by Lisa and dismissed the case. See Robert M. Mumma, II v. Lisa M. Morgan, No.
2011CV 1452 CV, Order(C.P. Dauphin Sept. 13, 2011).
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54. It is uncertain at this time whether any Bobali stock will be among the assets
ultimately distributed to Barbara or Robert II in respect of their remainder interests in the
Residuary Trust.
55. Most significantly, this Court previously held, in the context of Robert IPs motion to
remove Lisa as trustee that Lisa's failure to take the steps Barbara alleges were required of her
did not amount to a breach of her fiduciary duties.
56. The Superior Court agreed with this Court that Lisa's failure to do what Barbara
insists the Mr. Mumma, Sr.'s will requires her to do did not constitute a breach of fiduciary duty
by Lisa:
[Mr.] Mumma [] specifically provided [Lisa], in her role as personal representative when
making an equal distribution among the four sibling beneficiaries, with the power to
decide how "to make distribution of any trust herein created, either in money or in kind,
or partly in money and partly in kind." [Mr.] Mumma [] further indicated that the
"judgment of the trustees as to what shall constitute an equitable distribution or
apportionment shall be binding and conclusive upon the beneficiaries hereof."4
57. Likewise, this Court adopted the recommendation of Auditor Buckley that Lisa be
authorized to proceed with a plan of liquidation of the assets in the Residuary Trust. As the
Court aptly summarized the realities of the situation, "the Superior Court indicated in the context
of a prior challenge to Ms. Morgan's fiduciary conduct, she was not obliged to attempt the
impossible task of an immediate in-kind distribution of assets among the disputatious
remaindermen upon the trusts' terminations."5
58. There remain pending unresolved objections to accounts filed by Mrs. Mumma and
Lisa of their administration of the Residuary Trust, including objections challenging the
ownership of various assets by the Residuary Trust.
59. Lisa is proceeding with necessary steps to permit the ultimate distribution of assets
from the Residuary Trust. The pendency of objections to the accounts — including objections
4 In re Estate of Robert M. Mumma, No. 481 MDA 2011, slip op. at 17 (Pa. Super. Feb. 22, 2012)
(citations omitted). See also 20 Pa.C.S. § 7780.6(a)(31) ("[t]he powers which a trustee may exercise . . .
include the . . . power[] . . . (tJo distribute in cash or in kind or partly in each and allocate particular
assets in proportionate or disproportionate shares") (emphasis supplied).
5 Opinion Pursuant to Pa. R.A.P. 1925 at 11 (Aug. 30, 2013).
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regarding the ownership of specific assets in the Residuary Trust — presents an obstacle to
distribution.
60. The Court has not approved any plan of distribution of any assets from the Residuary
Trust.
61. Because the Residuary Trust is the owner of 1.4044 shares of Bobali stock, Lisa, as
its trustee, is entitled to vote those shares of stock in her discretion, without regard to instructions
from Robert II, Barbara or Linda. In so doing, she is, of course, subject the fiduciary duties that
attend all of her actions as trustee.
WHEREFORE, Lisa requests that the Court enter an Order clarifying that she is
authorized, as trustee, to vote stock in Bobali owned by the Residuary Trust.
Respectfully submitted,
By:
Ivo V. Otto III, Esquire
I.D. No. 27763
George B. Faller Jr., Esquire
I.D. No. 49813
Katie J. Maxwell, Esquire
I.D. No. 206018
MARTSON LAW OFFICES
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Brady L. Green, Esquire
Wilbraham, Lawler & Buba
1818 Market Street, 31 st Floor
Philadelphia, PA 19103
215.972.2860
Attorneys for Lisa Morgan, Co-Executrix and Co-
Trustee Under the Will of Robert M. Mumma.
Date: April _, 2014
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EXHIBIT `A'
SAUL EWING LLP 'e���i i :.�J �� -�
Michael A. Pinio, Esq. (38$72) �' '
Matthew M. Haar, ES�. �sscss� 2�P b FEB I 9 Pi� �- 0 7
2 N. Second Street, 7`�' Floor
Harrisbur�, PA 17l O I �,,, _,,;
717-23$-7671 —mfinio cz saul,com ���� t����`_ �������� � �'
717-257-75Q8 —mhaar�saul.com �}�����'��`
Attorneys for Pluintiff�
LISA IYIQRGAN, individually and in her : Ii�I THE COURT 4F CQM1VItJN PLEAS �F
capacity as Executor of the E�TATE OF : DAUPHIN COUNTY, PENNSYLVANIA
$AIiBARA McKIMMIE MUMMA an+d :
Trustee of the RESIDUARY TRUST {�F :
RO�ERT M. MUMMA, SXt. .
Plaintiff, .
w. : Na 2Q10-GV-I149d-E�Q
RUBE�T M. MUMMA II, .
BARBARA MANN MUMMA, and .
LIl'�DA MANN MUMMA .
Defendants, .
and .
BOBALI CORPORATION, .
Np�ninai Defendant. : Civil Aetion—Equity
RESPONSE OF FLAINTIFF LISA MORGAI�i IN iOPPOSITIOiV TC?
DEFENDAN7['BAR$ARA M. MUMMA'S MQfiION T(?DETERMINE VCITING
RIGHTS iN CERTAII'V SHARES OF BOBALI CORPORATIQN STOCK
QR, Tl�t THE ALTERNATIVE, TO STAY PROCEEDiNGS TU PERMIT SUCH
1}ETERMIIVATION BY THE CQURT UF GOMM�N PL�'.AS OF
CUMBERLAtVD CQUN'TY, URPIIANS' COURT DIVTSIUN
Plaintif'f Lisa Morgan ("Lisa"}, by and through her undersigned c�unsel, Saul
Ewing LLP, hereby responds to Defendant Barbara M. Mumma's (`Babs"} Motian to Determine
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Voting Rig�its in Certain Shares of Bobali Corparatian Stock or, in the t�lter�zatiue,to Stay
1'roceedings ta Permit S�ich 13eterniination by the Court of Common Pleas af Cumberland
Caunty, Qr�hans' Court l�ivisi�n (the "Mc�tion) �nd in styppart thereof avers as follows:
1. In the Mation Babs requests thet the Cc�urt interpret the terms of a Wil] and
Residt�ary Trust that have been in litigation in Cumher{and Col�nty since 1986 and w�iich are still
the subject of Iitigation there today. Babs alternatively aslcs that the Court stay Lisa's request for
a liquidaring receiver to permit the Cumberland Caunty Caur�to resolv� �abs' claims r�iated to
the Bobali sh�res owned by the Residuary Trust. By C7rder dated February 10,2014, the Court
stayed this case for 30 days to permit Babs to file a motion ar petition in Cumberland Caunty artd
directed Babs ta file proof of filing of the motion.
2. Babs stat�d in her Past-Trial 5ubmission filed July 17, 20I 3, that"onee this
Caurt decides tlie share ownership issue, Plainti£f's basis for an l�istarical deadlock disappears,
and there is na longer any basis for the appointment afa custadian or a receiver." (F3abs' Post-
Tria1 Submission at 3). This Cou�-t did decide �he "ownership issue" in its I�ecember 31,2013,
decision, but Babs now cantends the Gourt's decision was not enaugh and that there are mare
decisions to make. Babs' Motion reflects that she intends ta now raise isst�es regarding
"beneficial c�wnership"and distribution ofBobaii shares far which the Court alread� determined
th�t ownership belongs to the Residuary Trust. (As discussed in paragraph 5 below,this Caurt
determined years ago that Cumberiand County must address all issues related to the Estate a.nd
Trust.) Babs' argurnent about `°beneficial ownersl�ip", that she as a benefciary can direct#he
irustee how to use trust assets, is absurd and goes against the very idea of a tnrst. To the extent
t�aat Babs �iles a petitian ta raise this issue yet again in Cumberland Caunty, there is na guarantee
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as to when the Cumberland County Court will rule, and in the interim Babali continues ta be
without uncontested directors and officers that wou(d enable the carporatinn to rncave forward.
3. The shareholders meeting that was held pursuant ta this Gouri's Deceinber 31,
20I3, decision resulted in no clear steps being taken to mc�ve ttie company forward. For
example, it is unciear if bylaws were adopted or directors elected, as Bob and Babs contest hoth
actions. Given those abjections, alI actinns taken by shareholders and directors over the next
several years will be uncertain until their abjections are fully and finally resolved. Until these
issu�s are resolved or until a receiver is appointed, nobody can rely on any action taken by the
putative directors and of�cers of Bobali. The de�dlou� and rancar has nat`°disappeared" and a
Eiquidating receiver appears to be the anly way to resalve the matter. The campany cannot
functfon with this group of shareholders. If action is not taken soon, Bobali may be forced into
bankniptcy because it cannot pay far expenses such as taxes and a«tside accounting s�rvices.
4. The issues raised by both Bob and Babs disputing amang other things the
Pennsylvania Supply liquiciation, the Middle ParEc merger anci the voting of Residuary Tr�st
' shares foretell years of litigation. Tellingly absent f'rom Babs' Motion is any suggestion about
how Bobali is to function during any stay ar the years that will pass while issues are tatcen up on
appeal. As the Court is well aware, Bobali has no income, cash ar liquici assets. {Memarandum
Opinion dated December 31, 2�13 at 5}. The Court issued an Order dated September 12, 2013,
staying the tax sale of twc� parcels of real property in I?auphin County. Bc�bali is saddled by
obligations estimated ta exceed $740,000. {Status Report af Lisa Morgan filed January 31, 2014,
Exh. 3). Bobali must soon file ineome tax returns, but Bobali's acc:ountant of many years,
Gearge Hadley, ha� nat been paid for several past years of returns. (Idy} Another year's worth af
taxes will soon be assessed against Bobali's three parcels. It is impractical to think that a
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contestec� Board af Directc�rs wi11 be able ta ri�ht this sinking ship while Bob and Babs take
years to pursue their issues regardin�the shares held by the Residuary'1�rust, the Pennsylvania
Suppiy Compan}7 lsqutdation, the Middle Park rnerger anci others. Meanwhile, the assets of
Bobafi will con[inue to accrue additional debt, diminishing the corpor�tion's value.
5. Babs sug�ests that the Court may be "uncomfortable"either directing an
imrnediate ciistributian aF Bobali shares from the Resid�ary Trust or declarin� that Bob and Babs
are each entitled to vote a"beneficial interest" in the Residuary Trust's Babali shares. This
Caurt already determined that an,y action related to the Est�te of Robert M. Mumma, Deceaseci
and any Trust creafec3 thereunder must be pursued in the Urphans' Caurt Division of the Cc�urt of
Common Pleas o#`Cumberland County. Cln February 9, 201 l, Bob filed a camplaint against Lisa
in the Court of`Commo�l Pleas af Dauphin Gounty at Docket Na. 2011-cv-14S2 seeking a
declaratory jucigrnent a�ainst Lisa requiring her td disburse the assets af the Resicivary Trust. A
copy of the complaint is ariached hereto as Cxhibi#A. By Order dated September 13, 20I 1,the
Court(Brattnn, J.} sustainec� prelirrti��ary abjectiUns by Lisa and i�ismissed the cc�mplaint, statin�
"[a]ny rnatters contesting the Wili of Robert M. Mumrna,or the administratiati anci c�istribution
ofestate assets therefrom, must be fiied in the Cumberland Caunty Court ofCornmon Pleas,
Orphans' Court Division, which has jurisdiction over tbe estate and the 1'rust created thereto and
thase who serve as Executors of the estate and Trustees of the subject trusts." A copy of the
September 13, 201 l, Order is attached hereto as Exhibit B.
6. Babs' pasition, separately advanced by $ob, that Lisa was required to
immec�iately c�istri�ute the assets of the Residuary Trust{anti split each asset in ft�ur) upan her
mother's death has been rejected by the Cumberland Caunty Caurt and the Superior Ca�trt. The
Superior Court ruled that
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[w]ith respect to the distributioi� af assets to the four siblin�
bene�ciari�s, the t�•ial court det�rmined that Morgan's testimony
� established that she is completing the� process ofobtaii�ing
valuations of the estate ai�d trust assets and has asked th�
beneficiaries if they have any preferences regardiil� the receipt of
particulax assets or cash, and t�iat she intends to make an equitable
distribution of the assets to the beneficiaries after collecting this
inforrnation. We agree with the trial cnurt that this approach does
not constitute any breach of fiduciary duty. Murnma, Sr.
specifically provided Morgan, in her role as his persc�nal
r�presentative when making an et�ual distributian arnang the four
sibling beneficiaries, with the power to decide how to `make
distr�bution of any trust cr�ated, either in tnoney ar in kind, ar
partly in money and partly in kind.' Mumma, Sr. further indicated
that the `judgment af the trustees as tc� what shall cc�nstitute an
equitable distributian ar apportiarunent shal] be binding and
• canclusive upon the beneficiaries hereof.'
In re: Estate of Robert M. Mumma Deceased,No. 4$1 MT)A 2011, slip ap. at 16-17 (�'a. Super.
Ct. Feh. 22, 2012) (emphasis in original; citations amitted} (capy attached het�te�as E�ibit C).
More recently Senior Judge Oler apined that I�isa"was not obligated to attempt the impossible
task of an immediate in-kind division of assets among tt�e disputatious remaindermen upon the
trusts' terminatians." In re: Estate of Robe�M__Mumma, Deceased, No. 21-86-398, slip op. at
11 (t�.C. Curnberland August 30, 2013) (copy attac:hed as Exhibit D). Like Bob's thearies
regarding the Pennsylvania Supply Company IiquidaEion and the Middle Park merger, Babs'
clairns regarding "beneficial interests"and the distribution of the Residuary`I'rust assets
{separately advanced by Bob} will unfortunatety be further litigated for years, such that a
liquidating receiver rather than ihe "disputatious remaindennen"should control Bobali.
7. Sinee Barba.t� McKimmie Mumma's ("Kim"}passing in July 2U I U, Bob and Babs
have argued fihat the Residuary Trust was required to immediately distribute all shares af�3obali
in equal portians to the four siblings. Lisa respectfutly suggcsts that the decisions cited in
paragraph 6 above establish that she has acted properly in not making sueh a distributian. Tn fact
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distributian is impc�ssible until all of the abjections raised by both Bob and T�abs in the
Cumberland County proceeding have been fulty adjudicat�d.
8. Babs raises in a footnote that there is a question as to whether Attcarney Ge�rge
Faller("F�ller") has a conflict in servin�as a di�•ectar of Bobali. {Motion p. 12 n. b}. Babs
ar�;ues that`°�t]his ... is not the time to add��ess that conflict of interest," (Id.). Here again Babs
and Bc�b seem to be pacing their objections sa that Bobali wili never get to a position where there
is unqu�stianed leadership of lhe company. 8ob anc� E3abs' stz�ategy appears to be thai they will
see ifthey can get any traction or1 their"beneficial intei-est" issue, and if that fails tl�en they will
raise tlie next o�jectiozi, apparently thaC they believe that Faller has a conflict,
WHEREFORE,Plaintiff Lisa Morgan respectfully requests that the Court deny
tl�e Motion, appoint a liquidating receiver pursuant to the Court's decision of Decembe�•31,
2013, and �rant�uch f'urther relief as the Court deems just and equi�able.
Respectfully submitte�,
SAU W G L P
Dated: Febn�ary l9, 2014
c � A. inio, Esq. }
Matthew M. Haar, Esq. (�5688�
2 Narth Secand Street, 7th Flooz�
Harrisburg,PA 171Q1
717-238-7671 — mfinio a saul.cam
717-257-75a8—rnhaar a saul.com
Attorneys for Plaintiff
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VERIFICATION
Ivo V. Otto III, Esquire, of the firm of MARTSON DEARDORFF WILLIAMS OTTO
GILROY& FALLER, attorneys for Lisa Morgan, Co-Executrix and Co-Trustee Under the Will of
Robert M. Mumma in the within action, certifies that the statements made in the foregoing Answer
with New Matter are true and correct to the best of his knowledge, information and belief, based
upon information provided by Ms. Morgan. He understands that false statements herein are made
subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities.
Ivo V. Otto III, Esquire
, �
CERTIFICATE OF SERVICE
I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams Otto Gilroy &
Faller, hereby certify that a copy of the foregoing Answer with New Matter of Lisa M. Morgan to
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 was served this date by depositing same in the Post
Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows:
Richard F. Rinaldo, Esquire
Williams Coulson Johnson Lloyd Parker& Tedesco, LLC
One Gateway Center, 16`h Floor
Pittsburgh, PA 15222
Ms. Linda M. Mumma
P.O. Box 30436
Bethesda, MD 20824
Anthony L. DeLuca, Esquire
113 Front Street
P.O. Box 358
Boiling Springs, PA 17007
Mr. Robert M. Mumma II
Box F
Grantham, PA 17027
MARTSON LAW OFFICES
By
Trici . Ecke oad
Ten East High reet
Carlisle, PA 17013
(717) 243-3341
Date: Apri17, 2014
F:�FILES\Clients\5844 Mumma Estate\5844.19 Accounts and Distribution Trusts\5844.19.cos.wpd