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Home My WebLink About06-30-14 (3) r '1-r�_�� ,:�r= ,r�� `"i�Jfi�� IN THE COURT OF COMMON PLEAS �',�j�;,° OF CUMBERLAND COUNTY PENNSYLVANIA �v°��f.��2 �,"� f�: 21 ��p�� t�fTY' IN RE ESTATE OF ORPHAN'S COURT DNISION SY�ANIq ROBERT M. MUMMA, � � � No. 21-86-398 � � � �, �...� i.,, ,-> Deceased. -�a w�� _ <� <.� �� .� �� -� c°1 W ,� a �:� .... '-..�,. .,��-, � ��. �':...�.3 MOTION OF NON-PARTY MORGAN, LEWIS & BOCKIUS 3�LP�;; � '� � -� TO QUASH SUBPOENA AND FOR PROTECTIVE ORD�y � ` �� ._ ;v s ,_._ r-5� —j +__ :� � ��' -�i-� -�7 Pursuant to Pennsylvania Rules of Civil Procedure 234.4(b), 4011 and 4012, non-party Morgan, Lewis & Bockius LLP ("Morgan Lewis"), by and through its undersigned counsel, hereby moves this Court for a protective order quashing the subpoena propounded upon Morgan Lewis by Robert M. Mumma II. The grounds upon which this motion is based are as follows: 1. On June 13, 2014, a subpoena in this matter was left with Morgan Lewis' lobby receptionist in Philadelphia. The subpoena demands that Morgan Lewis 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 as Exhibit 1. 2. On July 24, 2014, Lisa M. Morgan, as trustee under the will of Robert M. Mumma, and the executor of the former co-trustee, filed a motion to quash the subpoena and for protective order ("Motion"). A copy of the Motion is attached as Exhibit 2. 3. Under Pennsylvania Rule of Civil Procedure 2009.21, Mr. Mumma, II was required to notify every party to the action of the intent to serve the subpoena at least twenty � days before he served it on Morgan Lewis. Morgan Lewis understands from the Motion that he did not provide such notice. 4. For the reasons set forth in the Motion, Morgan Lewis objects to subpoena as being in violation of Pennsylvania Rule of Civil Procedure 4011 because the subpoena seeks discovery that is duplicative of discovery already provided to Mr. Mumma, II, that is irrelevant to the above-captioned action, and that is protected from disclosure by the attorney-client privilege and/or work product doctrine. WHEREFORE, Morgan Lewis 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. Respectfully submitted, Dated: � 2G ZO��f John . Gorman ID No. 80631) MO AN, LEWIS & BOCKIUS LLP 1701 arket Street Philadelphia, PA 19103-2921 215.963.5000 2 CERTIFICATE OF SERVICE I, John V. Gorman,hereby certify that the foregoing is being contemporaneously served upon all parties of record on the below date, by first class mail, as follows: Richard F. Rinaldo, Esq. Williams Coulson Johnson Lloyd Parker& Tedesco, LLC One Gateway Center, 16th Floor Pittsburgh, PA 15222 Ivo V. Otto, III, Esq. 10 East High Street Carlisle, PA 17013 Brady Green, Esq. Wilbraham Lawler & Buba 1818 Market Street, 31 st Floor Philadelphia, PA 19103 Ms. Linda M. Mumma P. O. Box 30436 Bethesda, MD 20824 Anthony L. DeLuca, Esq. 113 Front Street P.O. Box 358 Boiling Springs, PA 17007 Shaun E. O'Toole, Esq. 220 Pine Street Harrisburg, PA 17101 �� Dat Jo V. Gorman COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ��'p� • 21-86-398 �` : File No. {?�r��r �� ` SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TU RULE 4009.22 TO: Morgan Lewis and Bockius {Name oFPer�on or Entity) Within twanty(20}deys aftcr service of this subpasna,you are ordered by thc court to produce the following documents or things: All documents relating to ths effort to"squeete out"Robert M, Mumma, II interest in the following� Pennsylvanla Supply Company of Harrisburg,Kim Company, Pennsy Suppiy Inc./�il�9B� . Nine Nfnety-Nine Inc. and Trusts and Estate created by the will of Robert M. Mumma • o� P.�.Box F,Qrantham,PA. 17027 (Address) Yoa may deliver or mail legible copies of the documents or produce things requested by this subpoena,tagether with the certificato of campliance,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. !f you fail to produce the documents or things required by this subpoona within twenty(20)days aftar its service,the party serving this subpoena may seek a court order compelling you to comply with it • TH1S SUBPOENA WAS 1SSUED AT THB REQUEST OF THE FOLLOWING PERSON: NAME: a~ � I � ADDRESS: .�.IP�'�u�Tl't'��-:-- p' L'jb Z�7 � TBLEPHONE:�,/7 ,�1 Z SUPRF.ME COURT[D# ,� ^_ ATTORNEY FOR: BY T E COURT: Register of Wills/C erk o th rphans Court • Date: � � Scal of t!e ourt Deputy Ivo V. Otto, III, Esquire I.D.No. 27763 George B. Faller, Jr.,Esquire �., � � I.D.No. 49813 � o � � cr'-'-, MARTSON LAW OFFICES �3 '" �= ` ' ° . � . 10 East High Street �� -- ' � � �� ` ' '"� f�J Carlisle, PA 17013 �= ` �^' : � � {717) 243-3341 " ' �� ' ' ,-; � Attorneys for Lisa Morgan, Co-Executrix and � o `-; � _� � Co-Trustee Under the Will of Robert M. Mumma. •" � �.� .=- m IN THE C4URT OF COMMON PLEAS � —' � � o OF CUMBERBLAND COUNTY,PENNSYLVAMA -� �' IN RE ESTATE OF . ORPHAN'S COURT DMSION 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 & BOCKIUS 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-tnistee, Bazbara McK. Mumma, respectfully moves as follaws 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]ll documents relating to the effort to `squeeze out' Robert M. Mumma, II [sicJ 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. l 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 I1vAPPROPRIATE 4. Morgan Lewis has for more than 25 yeazs acted as counsel to Mrs. Morgan and Mrs. Mumma in their capacities as executors and trustees. 5. Morgan 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 19861iquidations and the 1993 sale were the subject of prior lawsuits,bench trials,verdicts and appeals.� 7. Those transactions also were also the subject of examination by Mr. Mumma, II during the course of heazings 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, e1 al. v. Robert M. Mumma, ll, et al.,No. 66 Equiry 1988,Opinion and Order(C.P. Cumberland Mar.24, 1992),post-trial motion denied and frnal 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),affd, 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, Il 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 contrazy, 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 shazeholders' 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. S, 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 sepazately filed an action captioned Robert M. Mumma, 11 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 cleaz from the fact that, in the proceedings before Auditor Buckley, he questioned witnesses regazding the "squeeze-out" with reference to a memorandum dated May 4, 1989 from Mr. O'Connor to other Morgan Lewis lawyers. (Exh. p2-2). 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. ' In re Estate oJRobert M. Mumma, Deceased, No. 21-86-398, Opinion and Order of Court [In re Request for Preliminary InjunctionJ (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-Tcustee Under the Will of Robert M. Mumma. 5 EXHIBIT `A' . COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ��jt}��0� • 21•86-398 . File No. j�,��- 1`�. i��+�- : SUBPOENA TO PRODUCE DOCUMENTS OR THINGS FOR DISCOVERY PURSUANT TO RULE 4009.22 TO: Morgan Lewis and Backius (Name oFPerson or Entity) Wiihin twenty(20}days aftcr service of this subpocna,you are ordered by thc court to produce the following documents or things: Ail documents reladng to the effort to"squeeze out"Robert M. Mumma, II interest in the following� Pennsylvania Suppiy Company of Harrisburg,Kim Company, Pennsy Suppty Inc./ . Nine N(nety-Nine Inc. and Trusta and Estate created by the will of Robert M. Mumma • Q� P.O. Box F,Qrantham,PA. 17027 (Address) You may deliver or mail legible copies oF thc documents or produce things requested by this subpoena.together with the certificato of campliance,to the party muking 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. If you fail to produce the documents or things required by this suhpoena within twenty(20)days after its service,the party serving this subpaena may seek a court order compe(ling you to comply with it • TH1S SUBPOENA WAS ISSUED AT THB REQUEST OF THE FOLLOWING PERSON: � NAME• d` R � ADDRESS: ��+��-�M a �- c jd�7 � TELEPHONE:�{7 ,�1 Z� SUPRFME COURT 1D# :5 ATTORNEY FOR; BY T E COURT: Register of Witls/C erk o th rphans Court • DAte: �o � Seal of t 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'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 Shaun E. O'Toole, Esquire 220 Pine Street Harrisburg,PA 17101 MARTSON LAW OFFICES Y Tricia . Ecke�r ad en East High Street Carlisle, PA 17013 (717)243-3341 Date: June 23, 2014 F:�FILES\Clienls15844 Mumme Estate�5844.19 Accounts and Distribution Trusts�5844.l9.cos.wpd