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Home My WebLink About02-25-91 BARBAHA McK. MUMMA and LISA M. MORGAN, Individually and as Executrices of the Estate of ROBERT M. MUMMA, deceased, and LINDA M. ROTH, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. ROBERT M. MUMMA, II, Defendant EQUITY NO. 66 1988 ----------------------------------------------------------------~- ----------------------------------------------------------------- ROBERT M. MUMMA, II, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NINE NINETY-NINE, INC., HUMMELSTOWN QUARRIES, INC., BARBARA McK. MUMMA, BARBARA M.: McCLURE, LINDA M. ROTH, and LISA M. MORGAN, Defendants EQUITY NO. 14 1990 ------------------------------------------------------------------ ------------------------------------------------------------------ ROBERT M. MUMMA, II, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. NINE NINETY-NINE, INC., BARBARA McK. MUMMA, LISA M. MORGAN, and LINDA M. ROTH, Defendants EQUITY NO. 15 1990 ----------------------------------------------------------------- ----------------------------------------------------------------- ROBERT M. MUMMA, II, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. BARBARA McK. MUMMA, LISA M. MORGAN, Individually and as Executrices of the Estate of ROBERT M. MUMMA, and as Trustees of a certain Marital Trust, LINDA M. ROTH, and BARBARA M. McCLURE, Defendants NO. 84 EQUITY 1990 1">....>") ^"'^"'''"' BARBARA McK. MUMMA and LISA M.: MORGAN, Individually and as Executrices of the Estate of ROBERT M. MUMMA, Plaintiffs IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHAN'S COURT DIVISION v. ROBERT M. MUMMA, II, BARBARA A. McCLURE, and LINDA M. ROTH, Defendants NO. 21-86-398 AND NOW, this RULE TO SHOW CAUSE "/1 ~ '/L day of QC ',e, , '1991, upon consideration of the Motion for Protective Order of Nine Ninety- Nine, Inc., Hummelstown Quarries, Inc., Barbara McK. Mumma and Lisa M. Morgan, seeking protection from abusive, wasteful, burdensome and/or improper discovery, a Rule is hereby entered upon Robert M. Mumma, II, to show cause, if any he has, why such relief should not be granted. 6C) S~~\',c.Z r , 1991. RULE RETURNABLE e E', J. If" 1')-"3 i'-,,"-' "':t BARBARA McK. MUMMA and LISA M. MORGAN, Individually and as Executrices of the Estate of ROBERT M. MUMMA, deceased, and LINDA M. ROTH, Plaintiffs v. ROBERT M. MUMMA, II, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ----------------------------------------------------------------- ----------------------------------------------------------------- EQUITY NO. 66 1988 ROBERT M. MUMMA, II, Plaintiff v. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NINE NINETY-NINE, INC., HUMMELSTOWN QUARRIES, INC., BARBARA McK. MUMMA, BARBARA M.: McCLURE, LINDA M. ROTH, and LISA M. MORGAN, Defendants EQUITY NO. 14 1990 -------------------------------------------_.---------------------- ----------------------------------------------------------------- ROBERT M. MUMMA, II, Plaintiff v. NINE NINETY-NINE, INC., BARBARA McK. MUMMA, LISA M. MORGAN, and LINDA M. ROTH, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ----------------------------------------------------------------- ----------------------------------------------------------------- EQUITY NO. 15 1990 ROBERT M. MUMMA, II, Plaintiff v. BARBARA McK. MUMMA, LISA M. MORGAN, Individually and as Executrices of the Estate of ROBERT M. MUMMA, and as Trustees of a certain Marital Trust, LINDA M. ROTH, and BARBARA M. McCLURE, Defendants 1.22/1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 84 EQUITY 1990 , ~ .. II Thomas M. Kittredge Identification No. 04471 Brady L. Green Identification No. 56450 MORGAN, LEWIS & BOCK IUS 2000 One Logan square Philadelphia, PA 19103 (215) 963-5636, 5079 BARBARA MeR. MUMMA and LISA M. MORGAN, individually and as executrixes of the ESTATE OF ROBERT M. MUMMA, deceased, and LINDA M. ROTH Plaintiffs, : vs. ROBERT M. MUMMA II, Defendant. ROBERT M. MUMMA, II plaintiff, vs. NINE NINETY-NINE, INC., HUMMELSTOWN QUARRIES, INC. BARBARA MeR. MUMMA BARBARA M. McCLURE : LINDA M. ROTH, and LISA M. MORGAN, : Defendants. ROBERT M. MUMMA, II Plaintiff, vs. NINE NINETY-NINE, INC., BARBARA McK. MUMMA, LISA M. MORGAN, and LINDA M. ROTH Defendants. 1.226 Attorneys for Nine Ninety-Nine, Inc., Hummelstown Quarries, Inc., Barbara MeR. Mumma and Lisa M. Morgan . . COURT OF COMMON PLEAS CUMBERLAND COUNTY : : : . . EQUITY NO. 66 1988 : COURT OF COMMON PLEAS . . . . CUMBERLAND COUNTY : EQUITY NO. 14 1990 COURT OF COMMON PLEAS . . . . CUMBERLAND COUNTY : : EQUITY NO. 15 1990 ROBERT M. MUMMA, 1:1:, . . COURT OF COMMON PLEAS CUMBERLAND COUNTY plaintiff, . . . . v. BARBARA MCK. MUMMA, L1:SA M. MORGAN, individually and as executrices of the Estate of Robert M. Mumma, and as trustees of a certain Marital Trust, L1:NDA M. ROTH, and BARBARA M. MCCLURE : . . : Defendants. NO. 84 EQU1:TY 1990 BARBARA McK. MUMMA and LISA M. MORGAN, individually and as executrices of the Estate of Robert M. Mumma, COURT OF COMMON PLEAS CUMBERLAND COUNTY ORPHAN'S COURT DIVISION Plaintiffs, v. : ROBERT M. MUMMA, II, BARBARA M. McCLURE, and LINDA M. ROTH : : NO. 21-86-398 MOT1:0N OF NINE N1:NETY-NINE, INC., HUMMELSTOWN QUARRIES, INC., BARBARA McK. MUMMA AND L1:SA M. MORGAN FOR PROTECTIVE ORDER Nine Ninety-Nine, Inc., Hummelstown Quarries, Inc., Barbara McK. Mumma and Lisa M. Morgan, by and through their undersigned counsel, hereby move this Court pursuant to Pennsylvania Rule of civil Procedure 4012(a) for a protective order, and in support thereof avers as follows: 1. On or about, January 28, 1991, Robert M. Mumma, II ("RMM II"), by his counsel, mailed to George W. Hadley, the 1227 r accountant for Nine Ninety-Nine, Inc., Hummelstown Quarries, Inc. and affiliated businesses, a subpoena and notice of deposition in the above-referenced actions. The notice 'also included a request that Mr. Hadley produce for inspection voluminous documents as specified in Amended Schedule A attached to the notice. (The notice and Amended Schedule A are attached hereto as Exhibit A) . 2. The documents referenced in paragraphs 1, 2, 4, and 6 through 10 of Amended Schedule A, inclusive, and all documents referenced in paragraph 11 of Amended Schedule A with respect to Nine Ninety-Nine, Inc. and Hummelstown Quarries, Inc., have already been produced to RMM II in response to a subpoena duces tecum served upon Mr. Hadley on or about June 22, 1990. RMM II requested and received copies of all documents referenced in those paragraphs. As a consequence, production of these documents to RMM II at this time would be both wasteful and 'duplicative. 3. paragraph 11 of Amended Schedule A additionally requests production of "[a]ll documents that relate to pennsy Supply, Inc., Elco Concrete Products, Inc., and all other wholly- or partly-owned subsidiaries and sub-subsidiaries of Nine Ninety-Nine, Inc.. "None of the subsidiaries or sub- subsidiaries of Nine Ninety-Nine, Inc. is a party to any of the above-captioned actions. 4. Among the documents responsive to the overbroad and burdensome request in paragraph 11 are documents containing highly sensitive and confidential business and financial data. See Affidavit of Lisa Mumma Morgan ~ 14 (attached hereto as 1228 Exhibit B); Affidavit of George W. Hadley (attached hereto as Exhibi t C). 5. RMM II is not an officer, director or shareholder of either Pennsy Supply, Inc. ("pennsy") or Elco Concrete Products, Inc. ("Elco"). See Affidavit of Lisa Mumma Morgan ~ 4. 5. Through certain of his own businesses, i.e. Kimbob, Inc. ("Kimbob"), Adams County Asphalt Co. ("ACA") and MCDermitt, Inc. (IMcDermitt"), RMM II acts as a direct and substantial competitor of both Pennsy and Elco. See Affidavit of Lisa M. Morgan, ~~ 6-13. As a consequence of the status of RMM II as a competitor, production of confidential business information with respect to these companies poses the threat of serious and irreparable harm to the companies. See 'Affidavit of Lisa Mumma Morgan ~ 14; Affidavit of George W~ Hadley ~ 5. 6. All documents that fall within the scope of paragraphs 14, 18 and 22 of Amended Schedule A have previously been produced to RMM II. As a consequence, production of these documents to RMM II at this time would be both wasteful and duplicative. 7. Paragraphs 12 and 13 of Amended Schedule A request production of documents, including a so-called "01d Castle" file, relating to a proposed sale of 999, pennsy Supply, Inc. and related assets to an Irish company. Paragraph 16 requests all documents prepared for or by and all correspondence with Mr. Joseph Hochreiter, who was retained for purposes of negotiating with the Irish Company. The documents sought by these paragraphs are therefore duplicative of those requested in paragraph 3, 1.229 which requests production of "[a]ll documents that refer to or that were prepared in connection with the proposed sale of the shares of Nine Ninety-Nine, Inc., and other Mumma family-owned assets to an Irish company." 8. In addition to being duplicative of documents requested by RMM II, the documents requested by paragrapbs 12, 13 and 16 are irrelevant to any issues in the above-captioned action. The Irish company withdrew from all negotiations to purchase the assets more than seventeen months ago, in large part due to interference and harassment by RMM II. Moreover, these requests represent simply another attempt by RMM II, as the owner of businesses operating in direct competition with pennsy and Elco, to obtain through abuse of the discovery process highly sensitive and confidential information regarding the Mumma family businesses. 9. Paragraph 15 of Amended Schedule A requests production of "[a]ll documents that relate to Union Quarries, Inc. from January 1, 1985 to the present." This request fails to identify the requested documents with the specificity required under Pa. R. civ. P. 4009. Moreover, the request is so obviously overbroad that. many of the documents that fall within its rubric will bear neither the slightest relevance to the instant action nor any possibility that the information contained therein will lead to the discovery of admissible evidence. 10. Paragraph 17 of Amended Schedule A requests production of "[a]ll documents pertaining to any informal or formal valuation of any of the assets of in the Estate or the 1230 Marital Trust created under the Will of Robert M. Mumma." This request is overbroad and unduly burdensome in that it requests valuations without any limitation upon either the date or the nature of the valuation. Moreover, except for the valuation of the Union Quarries stock, in ~one of the above-captioned actions does there exist any material issue as to the valuation of assets held by the Estate or the Marital Trust. Such valuation, to the extent that any question arises, is properly an issue for the Estate accounting before the Orphan's Court. 11. Paragraph 19 requests production of "[a]ll notes prepared by Mr. Hadley or other members or employees of Lucker, Kennedy at or in connection with meetings with Mumma family members since April 1986.. "This request is so obviously overbroad that many of the documents that fall within its rubric will bear neither the slightest relevance to the instant action nor any possibility that the information contained therein will lead to the discovery of admissible evidence. Moreover, all such notes relating to meetings discussing the MRA Agreements or the liquidations of Kim and Pennsylvania Supply companies previously have been produced to RMM II. 12. Paragraph 20 of Amended Schedule A requests production of "[a]ll documents dated from January 1, 1986 to the present pertaining to federal or state taxes payable by or potentially payable by the Estate of Robert M. Mumma, 999 or any of its subsidiaries, including tax returns." The amount of any taxes paid by the Estate is plainly without the scope of the above-captioned action. Moreover, this request represents simply 1.231. another attempt by RMM II, as the owner of businesses operating in direct competition with pennsy and E1co, to obtain through abuse of the discovery process highly sensitive and confidential information regarding the Mumma family businesses. 13. Paragraph 21"of Amended Schedule A requests production of "[a]ll documents pertaining to meetings or planned meetings with Mrs. B. McClure or Mrs. B. McK. Mumma to discuss a possible sale of E1co Concrete Products, Inc." Any proposed sale of Elco Concrete Products, Inc. is wholly irrelevant to any material issue in the above-captioned actions. 14. Each paragraph of Amended Schedule A requests production of documents which would include documents protected from disclosure by the attorney-client privilege and/or the accountant-client privilege. 15. In at least two of the above-captioned actions, RMM II has alleged that documents and information within the scope of Amended Schedule A improperly has been withheld from him. Thus, to require disclosure of that information in discovery would, in effect, rule upon the merits of RMM II's claim. WHEREFORE~ Barbara McK. Mumma, Lisa M. Morgan, Nine Ninety-Nine, Inc. and Hummelstown Quarries, Inc. respectfully request that this Court enter an order in the form attached protecting them from abusive, wateful, burdensome and/or improper discovery. 1232 Thomas M. Kittredge Brady L. Green MORGAN, LEWIS & ~oo ne Logan '1 lp', 5 9.6 -5 I ort&. iam F. Martson MARTSON, DEARDORFF, WILLIAMS & OTTO 10 East High Street carlisle, PA 17013 (717) 243-3341 Attorneys for Nine Ninety-Nine, Inc., Hummelstown Quarries, Inc., Barbara Mck. Mumma and Lisa M. Morgan 1233 Thomas M. Kittredge Identification No. 04471 Brady L. Green Identification No. 56450 MORGAN, LEWIS & BOCKIUS 2000 One Logan square Philadelphia, PA 19103 (215) 963-5636, 5079 BARBARA McK. MUMMA and LISA M. MORGAN, individually and as executrixes of the ESTATE OF ROBERT M. MUMMA, deceased, and LINDA M. ROTH plaintiffs, vs. ROBERT M. MUMMA II, Defendant. ROBERT M. MUMMA, II plaintiff, vs. NINE NINETY-NINE, INC., HUMMELSTOWN QUARRIES, INC. BARBARA McK. MUMMA BARBARA M. McCLURE LINDA M. ROTH, and LISA M. MORGAN, Defendants. ROBERT M. MUMMA, II plaintiff, vs. NINE NINETY-NINE, INC., BARBARA McK. MUMMA, LISA M. MORGAN, and LINDA M. ROTH Defendants. Attorneys for Nine Ninety-Nine, Inc., Hummelstown Quarries, Inc., Barbara McK. Mumma and Lisa M. Morgan . . COURT OF COMMON PLEAS CUMBERLAND COUNTY : . . : : : . EQUITY NO. 66 1988 . COURT OF COMMON PLEAS CUMBERLAND COUNTY . . : . . . . : : EQUITY NO. 14 1990 COURT OF COMMON PLEAS : CUMBERLAND COUNTY : : : . . EQUITY NO. 15 1990 123'1 ROBERT M. MUMMA, II, plaintiff, v. BARBARA MCR. MUMMA, LISA M. MORGAN, individually and as executrices of the Estate of Robert M. Mumma, and as trustees of a certain Marital Trust, LINDA M. ROTH, and BARBARA M. MCCLURE Defendants. BARBARA McR. MUMMA and LISA M. MORGAN, individually and as executrices of the Estate of Robert M. Mumma, plaintiffs, v. ROBERT M. MUMMA, II, BARBARA M. McCLURE, and LINDA M. ROTH : COURT OF COMMON PLEAS CUMBERLAND COUNTY : . . . . . . : . . NO. 84 EQUITY 1990 . . COURT OF COMMON PLEAS CUMBERLAND COUNTY ORPHAN'S COURT DIVISION : NO. 21-86-398 EXHIBITS TO MOTION OF NINE NINETY-NINE, INC., HUMMELSTOWN QUARRIES, INC., BARBARA McR. MUMMA AND LISA M. MORGAN FOR PROTECTIVE ORDER , ~ / WILLIAMS & OTTO Attorneys for Nine Ninety-Nine, Inc., Hummelstown Quarries, Inc., Barbara Mck. Mumma and Lisa M. Morgan 1235 1 ~ . . " " c . .. <, . " \ ,.. .' "\~ 't'. " . " II ~ - . ROBERT M. MUMMA, II COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v. NINE NINETY-NINE, INC., HUMMELSTOWN QUARRIES, INC., BARBARA' MCK. MUMMA, BARBARA M. MCCLURE, LINDA M. ROTH and, LISA M. MORGAN, Defendants. ~ NO. 14 EQUITY 1990 ROBERT M. MUMMA, II COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v. NINE NINETY-NINE, INC. BARBARA McK. MUMMA, LINDA M. ROTH and LISA M. MORGAN Defendants. NO. 15 EQUITY 1990 BARBARA McK. MUMMA and LISA M. MORGAN, individually and as executrixes of the ESTATE OF ROBERT M. MUMMA, deceased and LINDA M. ROTH COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, v. ROBERT M. MUMMA, II and BARBARA M. McCLURE Defendants. NO. 66 EQUITY 1988 1237 R03ERT M. MUMMA, II Plaintiff, v. B;~3ARA MCK. MUMMA, LIS~ M. MORGAN, individually and as executrices of the Estate of Robert M. Mumma, and as trustees of a certain LINDA M. ROTH and B;~ARA M. MCCLURE Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY NO. 84 EQUITY 1990 B~~ARA McK. MUMMA and LIS~ M. MORGAN, individually and as executrixes of the Esate of Robert M. Mumma, Deceased Plaintiffs, v. ROBERT M. MUMMA, II, E_~ARA M. McCLURE, and LIN~A M. ROTH COURT OF COMMON PLEAS CUMBERLAND COUNTY ORPHANS COURT DIVISION NO. 21-86-398 AMENDED NOTICE OF DEPOSITION TO: Thomas M. Kittredge, Esquire Morgan, Lewis & Bockius 2000 One Logan Square Philadelphia, PA 19103 william F. Martson, Esquire Martson, Deardorff, Williams & Otto 10 E. High Street Carlisle, PA 17013 1238 John Hardin Young, Esquire Porter, Wright, Morris & Arthur 1233 20th Street, N.W~ - Ste. 400 Washington, D.C. 20036-2395 Richard W. Stevenson, Esquire McNees, Wallach & Nurick P.O. Box 1166 Harrisburg, PA 17108-1166 Henry H. Janssen, Esquire Rapp, White, Janssen & German, Ltd. Suite 500 1800 John F. Kennedy Boulevard Philadelphia, FA 19103 Pursuant to Pa. R.C.P. 4007.1, Robert M. Mumma, II hereby provides notice of his intention to take the deposition upon oral examination of George W. Hadley, before a notary public or other official authorized by law to administer oaths, as follows: 1 . at the offices of Lucker, Kennedy, Felmeden, 241 Main Street, Buffalo, New York for the purpose of reviewing the documents described in Amended Schedule A. 2 . at the offices of Pepper, Hamilton & Scheetz, 3000 Two Logan Square, Eighteenth and Arch Streets, Philadelphia, Pennsylvania unless another location is agreed upon by the parties. ~239 Dated: " You are invited to attend and participate. By: :1240 JON A. BAUGHMAN ANTHONY VALE BRIAN T. ORTELERE Pepper, Hamilton & Scheetz 3000 Two Logan Square 18th and Arch Street~ Philadelphia,-PA 19103 WILLIAM C. COSTOPOULOS Kollas, Costopoulos, Foster & Fields 831 Market Street Lemoyne, PA 17043 Attorneys for Robert M. Mumma, II AMENDED SCHEDULE A 1. All documents that relate to the liquidation of Kim Company, including, but not limited to, work papers, financial statements, memoranda, correspondence to or from Robert M. Mumma, Robert M. Mumma, II, Bar:bara Mc_K. Mumma, Lisa Mumma Morgan, William D. Boswell, Harry G. Lake and Morgan, Lewis & Bockius and notes of meetings with Robert M. Mumma, Robert M. Mumma, II, Barbara McK. Mumma, Lisa Mumma Morgan, William D. Boswell, Harry G. Lake and Morgan, Lewis & Bockius. 2. All documents that relate to the liquidation of Pennsylvania Supply Company, including, but not limited to work papers, financial statements, memoranda, correspondence to or from Robert M. Mumma, Robert M. Mumma, II, Barbara McK. Mumma, Lisa Mumma Morgan, William D. Boswell, Harry G. Lake and Morgan, Lewis & Bockius and notes of meetings with Robert M. Mumma, Robert M. Mumma, II, Barbara McK. Mumma, Lisa Mumma Morgan, William D. Boswell, Harry G. Lake and Morgan, Lewis & Bockius. 3. All documents that refer to or that were prepared in connection with the proposed sale of the shares of Nine Ninety Nine, Inc., and other Mumma family-owned assets to an Irish Company. 4. All audited and unaudited financial statements for MRA, Inc., and Mumma Realty Associates I and II, for the years 1986-89, and all correspondence, notes, memoranda and work papers relating to these entities. 5. [Deleted; see 111]. 1241 . . . 6. All documents that relate to Hummelstown Quarries, Inc., including, but not limited to, documents reflecting the formation of the Company, work papers, financial statements, memoranda, correspondence to or from Robert M. Mumma, Robert M. MUIT~a, II, Barbara McK. Mumma, Lisa Mumma Morgan, William D. Boswell, and Morgan, Lewis & Bockius and notes of meetings with Robert M. Mumma, Robert M.~Mtlmma, II, Barbara McK. Mumma, Lisa Mumma Morgan, William D, Boswell, and Morgan Lewis & Bockius. 7. All documents that relate or refer to the transfer to the Estate of Robert M. Mumma of the Union Quarries stock owned by Kim Company before December 31, 1986. 8. All documents constituting or reflecting the value (at any time after 1985) of the Union Quarries stock owned by Kim Company. 9. All documents reflecting the business discussed or transacted at the meetings in Harrisburg on December 19, 1986. 10. Any notes taken by Mr. Felmeden at meetings of MUIT~a family members after the death of Mr. Mumma. 11. All documents that relate to Nine Ninety-Nine, Inc., pennsy Supply, Inc., Elco Concrete Products, Inc., and all other wholly- or partly-owned subsidiaries or sub-subsidiaries of Nine Ninety-Nine, Inc. dated from January 1, 1985 to the present, including audit files, tax files, permanent files, documents reflecting meetings with management or with Mumma family members or their advisors, documents reflecting the value of the companies or their assets, and all documents reflecting payments 1242 by these companies of dividends, legal fees and executive salaries. 12. The Old Castle file, and all other documents relating to a proposed sale of 999, pennsy Supply, Inc. and certain related assets to an Irish company (as set forth on the attached schedule) . 13.- All documents furnished or received from to the Irish company or its legal or financial advisors. 14. All documents that refer or relate to any right of first refusal claimed by Robert M. Mumma, II or to any proposal by Robert M. Mumma, II to purchase shares in 999 or related assets. 15. All documents that relate to Union Quarries, Inc. from January 1, 1985 to the present. 16. All correspondence with Mr. Joseph Hochreiter regarding the proposed sale of stock in 999 and related assets, and all documents prepared for or by Mr. Hochreiter. 17. All documents pertaining to any informal or formal valuation of any of the assets in the Estate or the Marital Trust created under the Will of Robert M. Mumma. 18. All documents reviewed at or prepared in connection with the meeting on October 31, 1986 regarding the proposed liquidations of Kim and Pennsylvania Supply Companies, and all subsequent notes or correspondence received or prepared in connection with the said liquidations. 19. All notes prepared by Mr. Hadley or members or employees of Lucker, Kennedy at or in connection with meetings 1243 with Mumma family members since April 1986, except meetings pertaining to the personal tax returns or financial affairs of such persons. 20. All documents dated from January 1, 1986 to the present pertaining to federal or state taxes payable by or potentially payable by the Estate of Robert M. Mumma, 999 or - any of its subsidiaries, including tax returns. 21. All documents pertaining to meetings or planned meetings with Mrs. B. McClure or Mrs. B. McK. Mumma to discuss a possible sale of Elco Concrete Products, Inc. 22. All documents that refer or relate to whether Robert M. Mumma, II had or should have a right of first refusal to purchase all or part of the Pennsy Supply business, or should have some other right to make an offer to purchase all or part of such business. (See letter of 11/10/86 to Mr. Hadley from Mrs. Morgan.) 1244 - 18/ AFFXDAVXT OF LXSA MUMMA MORGAN COMMONWEALTH OF PENNSYLVANXA 55. COUNTY OF DAUPHXN . . I, Lisa Mumma Morgan, depose and state as follows: 1. I am Vice-President and General Counsel of Pennsy Supply, Inc. ("pennsy"). 2. Pennsy is a materials supplier which does business in Dauphin, Cumberland, York, and Perry Counties. 3. Elco Concrete Products, Inc. ("Elco") is a wholly- owned subsidiary of Pennsy. Elco is a materials supplier which does business in Dauphin and Lebanon Counties. 4. Robert M. Mumma, II ("RMM II") is neither an officer, a director nor a shareholder of pennsy or Elco. 5. RMM II is the owner of several businesses. Among these are Adams County Asphalt Co. ("ACA"), Kimbob, Inc. ("Kimbob") and McDermitt, Inc. ("McDermitt"). ACA, in turn, owns the Fiddlers Elbow quarry near Hershey in eastern Dauphin County, and McDermitt operates a concrete plant on that site. 6. In numerous instances, and with increasing frequency, RMM II's businesses have bid against Pennsy or Elco in direct competition for contracts to supply building materials for various projects in Dauphin, Cumberland, York, Lebanon and Perry Counties. In fact, in telephone directories within the area of competition, advertisements for RMM II's companies often appear side-by-side with those of pennsy or Elco. See Exhibit D to 1245 . Motion of Nine Ninety-Nine, Inc., Hummelstown Quarries, Inc., Barbara MeR. Mumma and Lisa M. Morgan for Protective Order. 7. with respect to the supply of concrete, RMM II's businesses have bid in direct competition with pennsy on numerous projects, including, inter alia, the following: Middletown Area High School, J.N. Hall Technical Center, Central Dauphin East High School and a post office facility in Dauphin County. 8. In addition, as a general contractor RMM II has on at least one occasion, i.e. a major parking facility at the Hershey Medical Center, refused to allow delivery of pennsy concrete to the jObsite despite the fact that the subcontractor had ordered its concrete from Pennsy. RMM II's actions resulted in the loss of the contract by Pennsy. 9. RMM II's businesses have also bid other concrete jobs within Pennsy's usual area of operations, including, inter alia, several jobs for M & M Development Corporation. In fact, McDermitt was the only supplier allowed to submit bids for the concrete on the projects. 10. RMM II's businesses also compete with Pennsy in the aggregate and blacktop markets. 11. RMM II competes indirectly with pennsy for aggregate and blacktop jobs by bidding, through Rimbob and ACA, as a general contractor for paving and excavation projects in Cumberland, Dauphin and Perry Counties. ACA materials are used on those projects for which RMM II is awarded general contracts. - 2 - ~246 12. RMM II competes directly with Pennsy in the blacktop and aggregate markets in instances in which pennsy bids on projects as a general contractor. ACA has bid directly against pennsy on jobs for, inter alia, Silver Springs Township, Middle Paxton Township, Upper Allen Township, Borough of Palmyra and Borough of Marysville. 13. RMM II's businesses also compete directly with Elco. McDermitt has bid against Elco for concrete on jobs for, inter alia, Fort Indiantown Gap and weis Market Addition. on both of these jobs, McDermitt revised its initial bids in response to bids made by Elco. 14. The documents that RMM II seeks to obtain from George W. Hadley, the accountant for both pennsy and Elco, contain highly sensitive and confidential data, including production cost information and customer lists. This material relates solely to the operations of pennsy and Elco. If revealed to a direct and substantial competitor such as RMM II, this information could prove extremely damaging to pennsy and Elco. Among other things, the information would allow RMM II to calculate precisely the amount which Pennsy, in light of its prOduction costs, would need to bid for a given job. The information would also aid RMM II in penetrating the market shares of pennsy and Elco. - 3 - 1247 F'':B-:2-:C991 ,12:34 FR[II'I 1'1 L [; B . TO 8717238:=:659 Further this affiant saith naught. Subscribed and swo~n to before me this 2-2-n day of ~~ ,1991. NO~b~" NOTARIAL SEAL R1Cf./ARO A. LEHMANN, Notary Public Harrisbulll, Dauphin County My Commission Expims Nov. 30, 1992 ~~~~ 12i\~ _ -2 o ,P.05 , . - : :l (: ;: M ? [1 - - J AFFIDAVIT OF GEORGE W HADLEY, JR. STATE OF NEW YORK ss. COUNTY OF ERIE I, George W Hadley, Jr., depose and state as follows: 1. I am a certified public accountant with the firm of Lucker, Kennedy & Felmeden in Buffalo, New York. 2. I am the certified public accountant for Nine Ninety-Nine, Inc. ("999") and the subsidiaries and sub-subsidiaries thereof, including pennsy Supply, Inc. ("pennsy") and Elco Concrete Products, Inc. ("Elco"). 3. I have in my possession approximately fifty thousand documents relating to the financial and business affairs of 999, Pennsy and Elco. 4. The documents in my possession contain information with respect to Pennsy and Elco relating to, inter alia, the following: a. customer lists; b. volume of business by customer; c. volume of sales, in dollars and quantities of products, by individual pennsy or Elco location or operation; d. profitability by location or operation; e. pricing by location, products and quantities; f. production costs by location or operation; g. equipment by location or operation; h. raw material reserves; i. selling prices of products; j. compensation arrangements for key employees. :1249 5. The information referenced in paragraph 4 represents confidential and highly sensitive business information with respect to Nine Ninety-Nine, Inc. and subsidiaries. Based on my experience, I am confident that such information would be greatly desired by a competitor of the businesses, useful in competing with the company and subsidiaries, and, if produced to a competitor, would raise the possibility of substantial prejudice to Nine Ninety-Nine, Inc. and subsidiaries future business activities. Further this affiant saith naught. ~LJ~~ GEORGE ADLEY, JR. (J Subscribed and before me this of February :::::AN M,LPKS '1:::;t'Jry Pubiic., State of New yo.... _",~;;if1erl in FriB County (,. "'j Commissio" o:xplres March 30, 19.:11- Sworn to twenty-second , 1991. day ,~ . , \ ) Ci/Yl / 11A .1 !fI ct'lJu- Notary Public :1250 .p, C> 4 . . . 02. 2~..-91 01: Z9PM ",PENNISV ISUPP1..V INC. . , , . ".-l. .. S STON-'E-S;ORAO'E 682 CRUSHED STONE · BLACKTOP r~ FIDDLER'S elBOW QUARRY IP)L ADAMS COUNTY ASPHALT 566-3285 IN. UNION ST.)- STONE-CRUSHED lCont'dl eSTOQLS '-_. MOMIWllinL. ,....... Ow ~ M'..,.,. ........~....r...,...,... ~ MIl'_' \lllo"""":' m-om - - lU...1 IIllTH N J I SON IE .STORAGE HOUGEHOLD & - JDIIISCOUITYlSPllAl.T 1111 - 1I1....11!f6 - I:: . I UOA_IlifONlATll... __~"'ERC_AL I I P__OOr_'N""'..... I .STONE-NATURAL A.......""_ftL~ Z!l-Ik "-"_""~' _3Z11 _......ttCloo~ lJ1.t.. IUI lOUIIT AfIILD4 STOll .. ",..... - ..MOl! 8<lU4lng S,_ . FJagllone LaNSecaplng Slone ,.Ont ClfJarry To You fIQ".J1bl1G. JW HIrdlwI--.5702 ..._ __ -SU... MIDDLETOWN ~f&~I~1 . SAND · SLAG . PAVING MATERIALS · CONCRETE HEMPT 8ROS. lNe 1737-341 11 205 ClEEK RD ''''MP Hill flro I , STEEL TON I'l"'NT 939.9586 LOCUST POINT 79S. .STONE-CltUSHED IDm "00ll QUAlIl READY MIXED CONCRETE . CRUSHED STONE . P...V1NG L1...TEPIlAl.S STATeINIPECf.OWATE~ A ON 01 UNION QUAAAIU --. c...~ m:ucu _....lJI< II/Nat S.. tv lIUpJIy I,tJ 'hit "" ."""'k_ lJ1.J41l ~""'\IK.'JItIftlSIlllft tJ4.... U.STORE IT LOCK IT KEEP THE KEY . .1'1.n.I&J:IT~CM~0I~~ me 1"I"I.'s'ell.,~e'~~I.t'"'''.''.''..'.''' ===~: .1Ie. CRUSHED STONE UA AT: 233-4511 SIIoVER SPRINGS HUMMELBTOWN N!WPORT 100\ PAxTON 8T . HBO. MT. HOU. V SPRINGS ...111,..11........................... ~ __UoI....... WOULO YOU L'I<' TO GIT A L....GIP. ~HUE OF IUSINCSS FROM THI CUS- TOME'S IN YOUR NEIGHBORHOOO? T....N WHY NOT AOVIRTlSE IN THE TELIPHON! 'OIRECTORY? THE lUll' _ NESS O"ICE WILL IE GLAD TO GIVI YOU IN'QRMATION A&OUT YELLOW 'AGIS AOVI~TIS1NG. _ate VERMONT SLATE f'l.,>,QSTON& DECOR-' TlVE 'WER STONE CRUSHED LIIlESTONE OPIH lIAT. TILL H:)OAW - =.'/211 U.STOR.IT CONVENIENTLY LOCATED IN THE UNION DEPOSIT AREA. EASY ACCESS TO ALL MAJOR HIGHWAYS 7 SIZES TO MEET YOUR EVERY NEED S'XS' THRU 10'X30' .. ~E ooR" I COUPON I ~--.;,;I EASY Accm OFF 1-13 -- , J HOUSEHOLD & COMMERCIA\. STORAGE FOR EVERY PURPOSE COMPETITIVE II.... TES FENCED. SECURI1Y LIGHTING. RESIDENT MANAGER MONTH\. V OR YEARLY & ::;E!..~.SEIllY!Ce 3"'ORAOI \5S0CIATION AVAILABLE STORAGE SUPPLIES INSURANCE CLEAN.MODERN.DRY UNITS ~LL~~~ K..p In touch by TELEPHONE '558-84361 /i!ii!i!iil 958 PEIFFERS LANE Giiiii\ \!iii!!!l HARRISBURG 17109 ~ ( ) nEED 3OfTIfTHIn<i? ... fim ill IN YW.OW PAGES 101 ""0 buY*. ifill. rols. .... 1.251. S~ 0::2 02. ,:;;,2.. . .' , 92 CONCRETE-CONTACl -- . , > 1>4 '" P E M N IS ',Il" IS U P P L. Y INC. -p 0:3 " .., ..;.: DIe' ~"'~1_"c...w_ - CONCRETE-READY MIXED CONGRESSIONAL REPRESENTATIVE. cenUn~ _SYIUl'~,YINt ;ooo\J~G~mCOHGR._ . ..l8."CrJt"- ..... 766-16" ooomo~'"Mumb"" ...... " 101-"'"'''''''' ......_1 212'_~ .........1- ClOt __'....1) VAl.l.EnRAIiSlT MIX CONSIGNMENT SHO l-<W_'_.,...N2-4111 (Sot ~__l!1i1 P.g.) 'ERSNlCldTY WlllJAt.\'$ ,.. CONCRETE.T1tANS" MIXED "4JW:rIl#.'~~=,.c;;.;.~': ~ s.. ClwIc:Iw".Rftlty Iliad CONSTRUCTION MANAGEMENT CONDOMINIUMS MAllia. ASSOCIATES INC fOXCROFl 1OWNHOUSl woes . ...~. W 0nI"", S~~llllhurg ...... 13; ~l_~c.mo.' ...... .l6l06179 _R.nIlN.INC G S CONDOMINIUMS us 'CI1"alNrr Ca-r1Itlt ...,.. ... %Q It!! _i Can<>.. ......... 763~79 2CM INCOIl>IlIlATED 5I!HATi HOUSE COHIlOllINIUMS n.. f.."$lW"""'"."'.... .113 ZlllSo",,"c.o.o"" ........737_1 SUf<GU/(D COIIDOMIIIIUlol SAl.1S MI",-na lQ7\ WQftt IWO )bc""~rv SUHGUIl.D cOiiriOIiiNlW Silii . . . 491_7 WU~"'~~~IWW"" 61l1_Il<e- ........~N236 CONSULATES & OTHE. FOREIGN GOVERNMfJ REPRESENTATIVES CONSUU'!E OF lCEI.A~ Jl2C.......Can<>HIn .........76l. CONFERENCE CENTERS CONTACT LENSES N.L. MINICH & SONS METERED CONCIlm" EXCAVATING .PAY FOR WHAT YOU GET" NO WMTI- NO OVIR RUN FILL - TOP lOlL - SLAn. IlAUUHO - CJt' I 243..2856 no N. COUIOII't - Prompt Delivery- CAItUII.I,"" , ,;J,.. MCDERMITT, INC. READY MIXED CONCRETE COSCRETE CONSTRUCTION SUPPLIES Conlpu.ttr'-dJu~bmr S.,I'tCtrrified ~m~''''c-m. .. MASOSRYEQUIPRE]','TAL .' iQ .J. ' i:;;,!;.~ App''''. . [334-2131] -. .' '. M..CI::' Lr.'.c 1.aCl1>135-43"e . .' ~rtftSct'pl"'''1'r1i1cQl'li~:n)o{lIfltI'rIfDWl'Ilih:IId ~U'1, ,.. ~ON.Fftf. 7:ao TO .:OD SAT. A.M. LET YOUR FINGERS DO THE WALKING i" fil. YEUOW PAGES lET '/OUR FINGERS DO THE WALKING .. l':"n i,fIle YEllOW PAGES N . . . . . , CERTIFICATE OF SERVICE I hereby certify this 22nd day of February, 1991, that the foregoing Exhibits to Motion of Nine Ninety-Nine, Inc., Hummelstown Quarries, Inc., Barbara McK. Mumma and Lisa M. Morgan for Protective Order was served by hand delivery upon the following counsel: Jon A. Baughman Anthony Vale PEPPER, HAMILTON & SCHEETZ 3000 Two Logan Square 18th & Arch Streets Philadelphia, PA 19103-2799 and by U.S. mail, postage prepaid, upon: Charles E. Shields, III National Bank Building 2 West Main Street Mechanicsburg, PA 17055 ( /:::r-- /0_/0/ h .<; .o~ . I Thoma M. I ./,'., dge Attorney for Nine Ninety-N' e, Inc., Hummelstown Quarries, Inc., Barbara Mck. Mumma and Lisa M. Morgan ~ :1253 ~ .... 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