HomeMy WebLinkAbout06-23-14 r�;
Ivo V. Otto, III, Esquire
I.D. No. 27763 �
George B. Faller, Jr., Esquire c, � _,., �
I.D. No. 49813 `� � � ^�� �
MARTSON LAW OFFICES • `�' `= � �'
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10 East High Street rv , ;.,
Carlisle, PA 17013 '`"' ' "�_'
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(717) 243-3341 �.:r, ,, ;._; -� :,� _,.�
Attorneys for Lisa Morgan, Co-Executrix and �-, �' � � � � !'�
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Co-Trustee Under the Will of Robert M. Mumma. � ^' �' a � rri
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IN THE COURT OF COMMON PLEAS n -1= �'' °
s �
OF CUMBERBLAND COUNTY,PENNSYLVA1vIA
IN RE ESTATE OF . ORPHAN'S COURT DIVISION
ROBERT M.MUMMA, .
Deceased. . N0.21-86-398
MOTION OF LISA M. MORGAN TO QUASH SUBPOENA
SERVED ON AND FOR PROTECTIVE ORDER AS TO
DISCOVERY FROM MORGAN, LEWIS & BOCHIUS LLP
Lisa M. Morgan, as trustee under the will of Robert M. Mumma and executor of the
estate of her late mother and former co-trustee, Barbara McK. Mumma, respectfully moves as
follows pursuant to Pennsylvania Rule of Civil Procedure 4012 to quash a subpoena served on
and a protective order prohibiting discovery from Morgan, Lewis & Bockius, LLP ("Morgan
Lewis").
THE SERVICE OF THE SUBPOENA IS PROCEDURALLY DEFICIENT
1. Mrs. Morgan understands that on or about June 13, 2014, Mr. Mumma, II served on
Morgan Lewis a subpoena in this matter demanding that it produce "[a]11 documents relating to
the effort to `squeeze out' Robert M. Mumma, II [sic] interest in the following Pennsylvania
Supply Company of Harrisburg, Kim Company, Pennsy Supply Inc./Nine Ninety-Nine, Inc. and
Trusts and Estate created by the will of Robert M. Mumma." A copy of the subpoena is attached
hereto as Exhibit A.
1
2. Under Pennsylvania Rule of Civil Procedure 4009.21, Mr. Mumma, II was required to
serve on Mrs. Morgan's counsel notice of his intent to serve a subpoena on Morgan Lewis.
3. Mr. Mumma, II did not serve Mrs. Morgan's counsel with notice of his intent to serve
the subpoena. Had Mr. Mumma, II done so, Mrs. Morgan would have objected to the service of
a subpoena on Morgan Lewis, for the reasons set forth herein.
THE DISCOVERY SOUGHT FROM MORGAN LEWIS IS INAPPROPRIATE
4. Morgan Lewis has for more than 25 years acted as counsel to Mrs. Morgan and Mrs.
Mumma in their capacities as executors and trustees.
5. Margan Lewis repeatedly has been the subject of discovery by Mr. Mumma, II on a
range of issues, including the liquidations of Pennsylvania Supply Company and Kim Company
in 1986 and the sale in 1993 to CRH of the stock of Nine Ninety-Nine, Inc. The discovery from
Morgan Lewis in these proceedings and in multiple prior cases included the production of
thousands of pages of documents touching on, among many other topics, the 1986 liquidations
and the 1993 sale. At least three former Morgan Lewis lawyers have been deposed.
6. Both the 1986 liquidations and the 1993 sale were the subject of prior lawsuits, bench
trials, verdicts and appeals. 1
7. Those transactions also were also the subject of examination by Mr. Mumma, II
during the course of hearings before Auditor Joseph Buckley.
8. Indeed, during the hearings, Mr. Mumma questioned multiple witnesses, including
Joseph O'Connor (formerly of Morgan Lewis), David Landrey, Esquire of(formerly of Stradley,
� See Barbara McK. Mumma, et al. v. Robert M. Mumma, II, et al.,No. 66 Equity 1988, Opinion and
Order(C.P. Cumberland Mar. 24, 1992),post-trial motion denied and final decree entered, Opinion
and Order(C.P. Cumberland Nov. 5, 1992), aff'd, 433 Pa. Super. 660, 639 A.2d 846 (1993),
allocatur denied, 539 Pa. 679, 652 A.2d 1324(1994);Robert M. Mumma, II v. Pennsy Supply, Inc.,
No. 99-2765 Equity, Opinion and Decree Nisi, Finding of Fact 6 (C.P. Cumberland May 17, 2002),
post-trial motions denied and final decree entered, Opinion and Final Decree(July 29, 2002), aff"d,
833 A.2d 1156 (Pa. Super. 2003), allocatur denied, 577 Pa. 723, 847 A.2d 1287 (2004).
2
Ronon, Stevens & Young ("Stradley Ronon")), and Mumma family accountant George Hadley
regarding the "squeeze out" of Mr. Mumma, II's interest as a minority shareholder. (E.g., N.T.
June 17, 2009 at 1021-23 (O'Connor); N.T. Aug. 4, 2009 at 1916-25 (Landrey); N.T. Dec. 18,
2009 at 4299-300) (Hadley)).
9. In addition, the Stradley Ronon firm, which acted as counsel in connection with the
1993 sale of assets collectively referred to as the "Pennsy Supply Businesses" to CRH plc, has
been the subject of document discovery and depositions of at least three of its present or former
lawyers—Mr. Landrey, Karl Sherman and Dean Schwartz.
10. Mr. Schwartz was deposed in the course of the hearings before Auditor Buckley, and
his deposition was captioned in this matter. Mr. Landrey testified as a witness in 2002 trial of
the "two Pennsys" case regarding the 1993 sale.
11. Throughout his dozens of objections to the accounts they filed as executors and
trustees, Mr. Mumma, II alleged improprieties by Mrs. Mumma and Mrs. Morgan with respect to
the 1986 liquidations and the 1993 sale (along myriad other transactions), including the
suggestion that he had improperly been deprived of his rightful interest in Pennsylvania Supply
Company, Kim Company, Nine Ninety-Nine, Inc. and other assets. Such allegations were,
indeed, the central theme of Mr. Mumma, II's objections and his arguments and evidence at the
hearing before Auditor Buckely.
12. Throughout the hearings before Auditor Buckley, Mr. Mumma, II attempted to
suggest that there was something improper about the term "squeeze out," or that it connoted
improper or illegal conduct.
13. On the contrary, all of the witnesses who testified were in agreement that Mr.
Mumma, II's objections to the sale were well-known, and that the parties strived to conclude the
sale in spite of them. The transaction was concluded in accordance with all laws and
3
requirements governing minority shareholders' interests. (N.T. June 17, 2009 at 1021-25
(O'Connor), N.T. Apr. 22, 2010 at 5165-66 (O'Connor); Dep. of Hill, Apr. 14, 2010 at 127, 145-
48.)z
14. In connection with the sale in July 1993, Mr. Mumma, II received a Notice of
Shareholder Actions and Right to Exercise Dissenters' Rights in connection in July 1993. (Exh.
T-114; N.T. Aug. 5, 2009 at 2151-54 (Landrey)). Upon receipt of that document, Mr. Mumma,
II sought to enjoin the sale upon receipt of that document, and the Court declined to enjoin the
sale or the corporate actions taken to accomplish it.3
15. Mr. Mumma, II also separately filed an action captioned Robert M. Mumma, II v. D-
E Distribution Corp., No. 666 Equity, Nov. Term 1993 (C.P. Philadelphia), seeking to invalidate
the corporate divisions underlying the CRH transaction. He dismissed that action when he
agreed finally to execute an irrevocable consent and joinder to the terms of the sale transaction.
(Exh. T-240).
16. That Mr. Mumma, II previously has had an opportunity to take discovery about
transactions that occurred more than 20 years ago is clear from the fact that, in the proceedings
before Auditor Buckley, he questioned witnesses regarding the "squeeze-out" with reference to a
memorandum dated May 4, 1989 from Mr. O'Connor to other Morgan Lewis lawyers. (Exh.
02-2). That document bears production numbers "MLB 02895-MLB 02896" indicating that it
was produced to Mr. Mumma, II by Morgan Lewis.
z Thomas Hill was a former CRH plc official involved in the sale negotiations. His videotaped
deposition was presented in its entirety at the hearing before Auditor Buckley on June 15, 2010.
3 In re Estate of Robert M. Mumma, Deceased, No. 21-86-398, Opinion and Order of Court [In re
Request far Preliminary Injunction] (O.C. Cumberland Aug. 4, 1993), aff'd, 437 Pa. Super. 672, 649
A.2d 467 (1994);
4
_ _ _ _ _ __ _ _
17. Consequently, Mr. Mumma, II's subpoena to Morgan Lewis seeks discovery that is
both duplicative and relates to matters that are irrelevant to any matters pending in the above-
referenced action.
18. Under the Court's Order dated June 6, 2014 regarding Mrs. Morgan's motion in
limine the parties may not, in the context of the upcoming hearing before Auditor DeLuca, seek
to "relitigate issues of law and fact previously determined in this estate. . . ." Thus, any
discovery aimed at revisiting in this proceeding prior court decisions, the Auditor's report or this
Court's April 30, 2014 opinion with regard to the 1986 liquidations of Pennsylvania Supply
Company and Kim Company or the 1993 sale of the Pennsy Supply Businesses is improper.
19. Moreover, any attempt to take discovery from Morgan Lewis necessarily entails, in
large part, an attempt to obtain information protected from disclosure by the attorney-client
privilege and/or the work product doctrine.
WHEREFORE, Mrs. Morgan respectfully requests that the Court enter an order (a)
quashing the subpoena served on Morgan Lewis and (b) prohibiting Mr. Mumma, II from
pursuing from Morgan Lewis discovery within the scope of the subpoena.
MARTSON LAW OFFICES
By
Ivo V. O , II, Esquire
I.D. No. 27763
George B. Faller, Jr., Esquire
I.D. No. 49813
10 East High Street
Carlisle, PA 17013
(717) 243-3341
Date: Attorneys for Lisa Morgan, Co-Executrix and
Co-Trustee Under the Will of Robert M. Mumma.
5
EXHIBIT `A'
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
���� d� • 21-86-398
File No.
{���,y?c-' �`'�� �'l�rr�-t 4-t�- ,
SUBPOENA TQ PRODUCE DOCUMENTS OR THINGS
FOR DISCO'VERY PURSUANT TO RULE 4009.22
T0: Morgan Lewis and Bockius
(Name of Person or Entity)
Within twenty(20)days after service of this subpoena,you are ordered by thc court to produce the
following documcnts or thin�s:
All documents relating to the effort to "squeeze out" Robert M. Mumma, II interest in the following�
Pennsylvania Suppiy Company of Harrisburg, Kim Company, Pennsy Supply Inc./ �
Nine Ninety-Nine Inc. and Trusts and Estate created by the will of Robert M. Mumma .
at P' O. Box F, Grantham, PA. 17027
(Addcess}
You may deliver or mail lcbible copies of the documents or produce things requested by this
subpoena, togetl�er with the certificate of compliance, to the party making this request at the address listed
above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the
things sought.
lf you fail to produce the documents or things required by this subpoena within twenty(20)days
after its service,the party serving this subpoena may seek a court order compelling you to comply with it. •
THIS SUBPOENA WAS 1SSUED AT THE REQUEST OE THE FOLLOWING PERSON:
NAME: o ��'��R
ADDRESS: _�
l��/�n.�T!°h P�Mi—��p- ( j��j'�"7
TELEPHONE: ?! 7 �l�f�Z'7
SUPREME GOURT ID#�;�'
ATTORNEY FOR;
BY T E COURT:
Court .
Register of Wiils/C erk o th rphans
Da[e: � // � � � -
Seal of tl e ourt Deputy
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 Motion 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`" 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
Shaun E. O'Toole, Esquire
220 Pine Street
Harrisburg, PA 17101
MARTSON LAW OFFICES
Y
Tricia . Ecke ad
Ten East High Street
Carlisle, PA 17013
(717) 243-3341
Date: June 23, 2014
F:�FILES\Clients\5844 Mumma Estate\5844.19 Accounts and Distribution Trusts\5844.19.cos.wpd