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Home My WebLink About02-03-89 (4) COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-86-398 ESTATE OF ROBERT M. MUMMA, DECEASED ANSWER OF BARBARA McK. MUMMA AND LISA M. MORGAN TO PRELIMINARY OBJECTIONS OF ROBERT M. MUMMA II TO THE PETITION FOR DECLARATORY JUDGMENT UNDER 42 Pa.C.S. 9 7533 AND FOR OTHER RELIEF UNDER 20 Pa.C.S. Subch. 33C and 9 7133 Barbara McK. Mumma and Lisa M. Morgan, Executors of the will of Robert M. Mumma, deceased, Petitioners in the above action, file the following Answer to the Preliminary Objections of Robert M. Mumma, II, defendant in the above action, to the Petition for Declaratory Judgment under 42 Pa.C.S. 9 7533 and for Other Relief under 20 Pa.C.S. Subch. 33C and 9 7133 (the "Petition") : 1. As to Jurisdiction: the statute relied upon by defendant in his averment concerning jurisdiction over minor beneficiaries (20 Pa.C.S. 9 7540) does not exist. Petitioners believe that the intended statute is 42 Pa.C.S. 9 7540. Nonetheless, the objection as to jurisdiction over minor beneficiaries is without merit because this Court by decree dated December 29, 1988 appointed Robert M. Frey, Esq. as guardian ad litem for the minor children of Robert M. Mumma, II. with respect to other minor beneficiaries of the estate (that is, the children of decedent's daughters, Barbara M. McClure, Linda M. Roth and Lisa M. Morgan), those minors are ~~ virtually represented, within the meaning of 20 Pa.C.S. ~ 3504, by their respective mothers, who are all educated adults, sui juris and whose interests in the estate are identical to their minor children. 2. As to Jurisdiction: the statute relied upon by defendant in his averment concerning jurisdiction over unascertained beneficiaries (20 Pa.C.S. 9 7540) does not exist. Petitioners believe that the intended statute is 42 Pa.C.S. 9 7540. Presumably, defendant intends the phrase "unascertained beneficiaries" to refer to any unborn grandchildren or unborn more remote descendants of Robert M. Mumma. The objection as to jurisdiction over unborn beneficiaries is without merit because their interests are adequately represented, within the meaning of 20 Pa.C.S. 9 3504, by the adult parties to the action. 3. As to Law: the defendant's averment that the Petition is deficient because it seeks an advisory opinion beyond the scope permitted for declaratory judgments and because it asks the Court to bless a business transaction in anticipation of events which may not occur, is without merit. The Petition requests the Court to construe the decedent's will to determine whether his Executors and Trustees have power to sell certain estate assets. Construction of a Will is a proper subject for declaratory judgment relief under 42 Pa.C.S. 9 7533. -2- ~Y1 4. As to Law: the defendant's averment that the Petition raises issues not proper for declaratory judgment because the Court cannot determine such issues without having before it the Executors' Account, is without merit. The Executors are not asking the Court for its judgment as to whether it'is prudent or proper to sell certain estate assets. Rather they are asking the Court to construe the decedent's will to determine whether they have the power to sell such assets, should the Executors deem it expedient and in the best interests of the estate to do so. 5. As to Jurisdiction: the defendant's averment regarding the Court's jurisdiction to determine the rights and liabilities of the shareholders of Nine Ninety Nine, Inc. and Hummelstown Quarries, Inc. is without merit because the Petition does not request the Court to determine such rights and liabilities. Rather, the Petition requests the Court to construe language in decedent's will with respect to whether the Executors and Trustees have power to sell those companies, and to permit the companies' shareholders to submit any issues they may wish to raise in connection with any such sale to jUdicial arbitration in the Court of Common Pleas of Cumberland County or Dauphin county, pennsylvania. 6. As to Law: the defendant's averment that Count II of the petition should be stricken because it asks the Court to "search out and define" a new legal doctrine -- a -3- ~)r ,'- -',,' .... ,--~ . v reverse split -- and to "enhance legal rights and obligations which are fixed under Pennsylvania law" is nonsense and should be dismissed. It is unfortunate that neither defendant nor his counsel is familiar with the routine corporate reorganization "commonly called a reverse stock split" (the words of Justice Robert in Estate of Greathead, 428 Pa. 553 (1967)) whereby a corporation causes its shares to be exchanged for a lesser number of shares. Nonetheless, the Petition is not asking the Court to "search out and define" this routine procedure but rather to allow the estate, which controls the corporations in question, to permit the company's shareholders, including defendant, to submit to judicial arbitration any issues they may wish to raise in connection with any sale of certain business assets. WHEREFORE, it is respectfully requested that the Court enter a decree overruling the Preliminary Objections of Robert M. Mumma, II to the Petition. Jspectytitfy !lfr;~ttedl f L~~. ~EITER, I.D. #04629 OSEPH A. O'CONNOR, JR., I.D. #18327 Morgan, Lewis & Bockius 2000 One Logan Square Philadelphia, PA 19103 (W~5~?tTaJ/~2 WILLIAM F. MARTSON, I.D. #06291 Martson, Deardorff, Williams & otto 10 East High Street carlisle, PA 17013 (717) 243-3341 Attorneys for Petitioners -4- ;; '? (.. CERTIFICATE OF SERVICE I, Joseph A. O'Connor, Jr. hereby certify that on this 2nd day of February, 1989 I have caused true and correct copies of the foregoing Answer to Preliminary Objections of Robert M. Mumma, II to the Petition for Declaratory Judgment under 42 Pa.C.S. S 7533 and for Other Relief under 20 Pa.C.S. Subch. 33C and S 7133 to be delivered by certified mail, addressed as follows, to: Attorney for Robert M. Mumma, II: Jon A. Baughman PEPPER, HAMILTON & SCHEETZ 3000 Two Logan square 18th and Arch Streets philadelphia, PA 19103 Attorney for Barbara M. McClure: Richard W. Stevenson McNEES, WALLACE & DURICK 100 pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 I understand that this certification is subject to the penalties of 18 Pa.C.S. S 4904 relating to unsworn falsification to authorities. -5- " ~, c,/o! RECEIVED Fi:iJ 03 M.OW.O. '"'l t"' OOH :xl'"'lUl :>' t>1 "'r.?lt:l:xl :>' Ul o t<lO:;::Z 8 ("lH ....J () OJ. CIl ~ ,:: ::l ~'d"':;::'-'::;: 'd<.11t"'t>1 ~ S "'::>"'0001-'- PJw:>'l<l:;:: t>1 0"8 .-~. 011 CIl J--I . WS;80:xl ro::>"' <.11f-'01!l ro f-' ("l ::0 0 0 '1 ro - PJ pi '01-" . ~ 8:;::00 '"'l '1 f-' o.O::l::>"'~ Ul 0':>' '"'l 'g. PJ("l '" ro ::l ~ . t:l::O Z 25 ::l 0 '" f-' ro :>' ><::;:: to pi 0.':: w'O t"'. t>1 Ul'"'l C8:>' tD Z 0 >i I::>"'t""'ro . '::O'-'~O6l t>1 0 Ul ("lrt <.111-'-0" 0 O":xlC ~ 0 W pll!l 1-" - '" o 0 'd~ ,:: 0 "'~ plUl("lro ::>"'00 '" ("l 0'" -' 0 01-'- . 8:;:: H gJ :;:: .... 0 rt ~ 'd 2'>0<1" :Ilt>1Ht"' I ,:: '<:("l :>'Ul oro wt>1Z H;;: OJ '1 ~ 0 I .0 tDO '1 w::01-31-3:;;:O a '" rt 'd~ <.11 ,:: 0 '1 ("l OH~ I tv .-qlJ () ... I ::0 C z. ~ w t:l ro 0 ...."''1~. Plt>1Z1-3?;; -',\,,0 1-'- ::l ::l "'....rol-'.'-'* ::It""'t:l:Il :;;: OJ <: ::l 0 >::'10 o.Ht>1t>1><:C 1-" lJl'd w tIl !'-.J::>o t'J::O ~ Ul '<:f-' '" r.?l"':l 'dO t:l 1-" f-'ro I'" ...t<ltP t'J 0 <: PJ '" -1C"'1-3c:.., ("l ::l IlllJl "" f-'Z Ht>1~ t'J ::l .... wt:l'd1-3("l :>' 1-'-0 OJ wt>1p1H..ot:l Ul Ill'" w ::0' OH t'J '" ("lZO t:l -I Z Ul Ul ('I) ~.~ C..:'~'. ':'!" :.~~ .,i, ,7:.,!;'~ W c:> \....~ ,:..) :a: .......::) :;"(.) "- Zo u..L. C'CJ <"'l <% cC;;:: I a:4 WUJ CD a:..J 0'- 00:: """, l:::: ,w o~ ",,'" '->w o<:I: :i!a: ~. w:::> ..J<-> c.> COURT OF COm10N PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-86-398 ESTATE OF ROBERT M. MUMMA, DECEASED DECREE AND NOW, this day of , 1989, upon consideration of the annexed Answer of Barbara McK. Mumma and Lisa M. Morgan to the Preliminary Objections of Robert M. Mumma, II to the Petition for Declaratory Judgment under 42 Pa.C.S. 9 7533 and for Other Relief under 20 Pa.C.S. Subch. 33C and 9 7133, said Preliminary Objections are hereby overruled. By the Court: J. ....])(' "', ,......, ',.J ,."'''~.