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HomeMy WebLinkAbout01-17-89 BARBARA McK. MUMMA and LISA M. MORGAN, Executors of and Trustees under the will of Robert M. Mumma, Deceased, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs ORPHANS' COURT DIVISION 21-86-398 v. ROBERT M. MUMMA, II, BARBARA M. McCLURE and LINDA M. ROTH, Defendants PRAECIPE FOR ENTRY OF APPEARANCE TO: LAWRENCE E. WELKER, PROTHONOTARY Please enter my appearance as counsel for Barbara M. McClure, in the above matter. MCNEEMALLACE IA I"\. By Date: January /3 , 1989 Richard W. Steven on Attorney I.D. *7~20 100 pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 ff ~.t? ~'I,,! r BARBARA McK. MUMMA and LISA M. MORGAN, Executors of and Trustees under the Will of Robert M. Mumma, Deceased, IN THE COURT OF COMMON PLEAS CUMBERLAllD COUNTY, PENNSYLVANIA Plaintiffs : ORPHANS' COURT DIVISION 21-86-398 v. ROBERT M. MUMMA, II, BARBARA M. McCLURE and : LINDA M. ROTH, Defendants : ANSWER WITH NEW MATTER OF BARBARA M. McCLURE TO PLAINTIFFS' COMPLAINT FOR DECLARATORY JUDGMENT AND OTHER RELIEF Barbara M. McClure, by her counsel, Richard W. Stevenson, makes the following Answer with New Matter to the Complaint filed December 27, 1988, in the above action. 1-14. The averments of Paragraphs 1 through 14, which identify the parties to this action, identify documents and corporate entities and which identify the share-holding interests in various entities, are admitted. 15. It is admitted that communications have occurred between the Buyer and Plaintiffs, exploring bases upon which a transaction of sale might be structured. This Defendant is generally aware of the interest of the Buyer and of the desire of Plaintiffs to pursue those discussions to fruition. ,;;' ~ 0 COUNT I 16. The admissions and averments of Paragraphs 1 through 15 above are incorporated herein by reference as though set forth at length. 17. Barbara M. McClure admits that Plaintiffs have con- cluded, in the language of PARAGRAPH 13 of the Will, "that it is not expedient and possible to retain" the identified assets, and that they have further concluded that such assets should be sold. The last sentence of Paragraph 17 of the Complaint is a legal conclusion to which no responsive pleading is required. 18. Barbara M. McClure admits that the Plaintiffs, trustees under the will, have agreed that it is in the best interest of the estate that the identified assets be sold to Buyer. 19. Admitted. 20. Barbara M. McClure has been advised that the Buyer wishes to buy all the stock, but not less than all the stock, of the respective corporations. However, Barbara M. McClure has no independent knowledge of the Buyer's ultimate intentions or whether the Buyer would proceed with acquisition of less than all of the stock, such matters being entirely within the knowledge and control of the Buyer, not Plaintiffs nor Barbara M. McClure. - 2 - ~~I 21. Barbara M. McClure admits that she has been advised by counsel for Plaintiffs that the preferred structure for the proposed transaction should be one of sale of stock rather than sale of assets. Counsel for Plaintiffs has advised, however, that an asset sale is among the available arrangements in which the proposed sale to Buyer might be structured. 22. Denied as stated. Plaintiffs' counsel advised Barbara M. McClure that four alternative procedures were avail- able to deal with the a nonselling shareholder in order to effect the desired sale, anyone of which procedures would accomplish the desired results, albeit with differing conse- quences. It is admitted that a procedure invoking the provi- sions of section 608 of the Business Corporation Law has been identified by Plaintiffs' counsel as their preferred mechanism for compelling a minority nonselling shareholder to be subject to the transaction. 23. The conceptual arrangements identified in Paragraph 23 of the Complaint, expressed as the desire of Plaintiffs to enter into an agreement not yet consummated with Buyer are stated in such vague and general language as to render responsive pleading to be without substance. It is admitted that Plaintiffs have considered various arrangements under which, in their view, "fair compensation" and protection of rights which may be available under the Business Corporation - 3 - , -,,; Law, would be assured to the nonselling shareholders. None of those arrangements have been pleaded with sufficient particu- larity to permit a meaningful responsive pleading, were the subject relevant to this litigation. Barbara M. McClure believes and therefore avers that any actions taken by Plain- tiffs in connection with the matters identified in the Complaint, and Paragraph 23 of the Complaint in particular, should be actions which are permitted by law, consistent to the fullest extent possible with the best interests of all family members and as fair as can be under all the circumstances. 24. It is admitted that the Plaintiffs do propose alter- native mechanisms to resolve valuation questions, any of which mechanisms might be agreed upon by the parties as a procedure for determining the value of the shares of an affected nonsell- ing shareholder. Any such mechanism depends for its efficacy, however, upon the consent and agreement of the nonselling shareholder, which agreement has not been obtained from any of the Defendants, as of the date of this responsive pleading. 25. It is admitted that Plaintiffs prosecute this action for the purposes identified in Paragraph 25 of the complaint and to obtain the remedies therein identified. The determina- tion of the basis upon which such relief might be granted is a matter for the consideration of the Court. By admitting Plain- tiffs' wish and purpose in prosecuting this action, Barbara M. - 4 - McClure does not admit that such relief must follow. She will, however, abide by the adjudications of this Court and any relief which may be afforded to Plaintiffs in the action. 26. Admitted. 27. It is admitted that if a question is raised concerning construction of the decedent's will, as to which a justiciable controversy exists, this Court has jurisdiction to grant declaratory relief. It is, however, for the Court to determine whether any relief is appropriate and should be granted under the circumstances of this action. NEW MATTER 28. The Complaint fails to state any cause of action within the jurisdiction of this Orphans Court Division of the Court of Common Pleas. The Complaint fails to state a cause of action for declaratory relief under 42 Pa. C.S. 97533. 29. The Complaint fairly discloses that the subject matter upon which a controversy exists between Plaintiffs and one or more of the parties Defendant, is that identified in Paragraph 19 of the Complaint. One or more of the Defendants may wish not to sell shares of stock in the affected corpora- tions to the Buyer. Barbara M. McClure avers that the dispute affecting that matter is not one arising under the Will of the decedent, nor does it arise out of the administration of the - 5 - ~~3 trust created by decedent. Rather, it reflects a disagreement, or potential disagreement, among shareholders of the corpora- tions, which disagreement is not properly subject to resolution solely by adjudication of this Court. Rather, it depends for its proper resolution upon the accommodation of the interests of the various parties to reach a resolution which is reason- ably acceptable to each. To the extent that these proceedings provide a forum for that accommodation, Barbara M. McClure will actively participate in order to secure a resolution which is agreeable to the extent possible and fair in its effect and outcome for the members of the family, also to the extent possible. WHEREFORE, Barbara M. McClure appears as a party in this proceedings, seeking a resolution by agreement and accommoda- tion among the parties to the extent obtainable prior to adju- dication, but thereafter requesting this Court to enter such - 6 - d~~ .' relief as it deems appropriate under all the circumstances, after hearing. Date: January 13., 1989 TOl Within Plaintiffs YOII are hereby notified to plead t1l the enclosed New Matter within twenty (20) days from service herecf or a default judgment ffi~Y be enteleG ~!!. j ~, fOU. McN'-i Wall3:e & Nur;ck h BY1:f-1~j/aJJ.JY~rHlfc:rJ Att!lHleys for Defendants -") '" r. "..."".., By - 7 - I'VL Richard W. Attorney I D. #07120 100 Pine street P. o. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 VERIFICATION Barbara M. McClure hereby verifies that the facts set forth in the foregoing pleading are true and correct to her knowledge, information and belief. This Verification is made pursuant to the provisions of 18 Pa.C.S.A. ~4904. 4~ 7'? -n-l'~ Barbara M. McClure Dated: January /1, 1989 '"l "',. 01 e", \,0