HomeMy WebLinkAbout12-23-91
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IN RE:
ESTATE OF
ROBERT M. MUMMA,
late of Cumberland :
County, Pennsylvania:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
NO. 21-86-398
IN RE: PETITION TO COMPEL
Proceedings held before the
Honorable HAROLD E. SHEELY, P.J.
Cumberland County Courthouse, Carlisle, pennsylvania
on Wednesday, December 18, 1991, commencing at 9:30 a.m.
in Courtroom Number One
cr... \Q
APPEARANCES:
o
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william C. costopoulos, Esquire
Charles E. Shields, III, Esquire
For Petitioner
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William F. Martson, Esquire
For Respondents
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1 MR. COSTOPOULOS: Good morning, Your Honor.
2 May it please the court, I would like the record to reflect
3 that now is the time and place set by this Court for a
4 hearing pursuant to a rule to show cause which was directed
5 to Barbara Mumma and Lisa Morgan as executrices and trustees
6 of the will of Robert M. Mumma docketed to No. 21-86-398,
7 Orphans' Court Division.
8 I would like the record to further reflect that on
9 or about October the 18th Barbara Mumma and Lisa Morgan were
10 served by a deputy sheriff of this county and were issued
11 citations to be here this morning at 9:30.
12 For the record my name is william costopoulos, and
13 I'm here with Charles Shields who had originally filed the
14 petition. I'd like the record to further reflect that our
15 client, Bobby Mumma, is present for this hearing that has
16 now been scheduled since October.
17 Mr. Bill Martson appeared this morning, and with
18 respect to his appearing here this morning, our position is
19 that there's a conflict of interest for him to even be here
20 in any capacity; but, in any event, he appeared here this
21 morning and, as indicated, has indicated to us that neither
22 the law firm of Morgan, Lewis, and Bockius nor Barbara Mumma
23 or Lisa Morgan are here nor are they going to be here this
24 morning at this time though the citations have been served
25 and though the court order has been issued.
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1 I will have Mr. Martson state his position for the
2 record or his explanation for the record and then make my
3 appropriate motions. Mr. Martson.
4
MR. MARTSON: If the Court please, for the
5 record I spoke with Mr. Kittredge this morning, who is
6 actually counsel for the Mumma estate in the litigation
7 matters, and he advised me that for a reason for which he
8 could not recall he had not or he had deleted this hearing
9 from his book and could not give me -- he said he just
10 basically could not recall why.
11
Neither Mrs. Morgan nor Mrs. Mumma are here. I am
12 not prepared to proceed in the matter because I am local
13 counsel, but as far as we're concerned, this is a matter
14 which I realize the sheriff had served a citation. For some
15 reason or other a communication problem developed, and I'm
16 just not in a position to proceed with any testimony in
17 opposition to the petition.
18 I'd like to address the conflict of interest, if I
19 may. Mr. Mumma apparently made some aside before court this
20 morning that I'm the one that filed the disclaimer,
21 therefore I have a conflict of interest.
22 I would respectfully disagree with that and ask
23 the Court to not spend any time on such an assertion. We
24 are prepared to try to work something out with the
25 Petitioners here as to the documents, but I'm not in a
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1 position to bind my clients to be perfectly frank about it,
2 Your Honor.
3 THE COURT: okay. I think the way we're
4 going to proceed this morning since I don't want to delay
5 this particular part of the hearing, we'll permit the
6 Petitioners to put on any testimony in support of their rule
7 that they wish to put on today, and the Respondents,
8 obviously they're not hear and you're not prepared, they are
9 just going to lose their right to cross-examine any of the
10 witnesses who testify here today.
11 I will set up another date to give Respondents an
12 opportunity to testify, but like I said, they're going to
13 lose their cross-examination privileges for not being here.
14 So we're going to proceed with any testimony that the
15 Petitioners want to present today.
16 In all fairness that's the only way I can handle
17 the matter this morning. So that's the way we'll proceed,
18 Mr. Martson, accordingly.
19 MR. MARTSON: Thank you, Your Honor.
20 MR. COSTOPOULOS: Mr. Shields.
21 Whereupon,
22 CHARLES E. SHIELDS, III
23 having been duly sworn, testified as follows:
24 DIRECT EXAMINATION
25 BY MR. COSTOPOULOS:
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Q Mr. Shields, please state your full name for
the record.
A Charles E. Shields, III.
Q And you're a lawyer in Cumberland County
Courts?
A Yes, sir.
Q And certified to practice law in the
Commonwealth of Pennsylvania?
A Yes, sir.
Q And in your capacity as a lawyer in the
Commonwealth of Pennsylvania, on behalf of Robert M.
Mumma -- were you retained by Robert M. Mumma to represent
him regarding certain matters which include but are not
limited to the securing of certain documents on his behalf?
A Yes, sir.
Q And in that capacity, did you determine that
he had a right to certain documents as a beneficiary of the
estate or as a remainderman beneficiary or as the father of
the children who are ultimately going to be the
beneficiaries?
A Yes, sir. My research indicated through
general principles of law and logical reasoning that Bob
either in his own right or as the father of his children, if
his revocation disclaimer should be overruled, would have
standing to obtain a large number of documents to look out
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letter.
Q
A
Q
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pleadings.
Q
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1 from you to Mr. Martson and to Mr. Kittredge?
2
A
Right.
3
Q
And though the letter speaks for itself, and
4 it does, and is now a matter of record -- I'm incorporating
5 Exhibit B into this proceeding -- summarize for the Court so
6 the Court doesn't have to go through reading this letter at
7 this time, what documents you were aSking for.
8
A
The letter contains a very broad perhaps
9 omnibus request would be appropriate for various documents
10 and various natures of documents both from the estate
11 property and from any corporations which are controlled
12 either outright by the estate through its stockholdings or
13 by the estate in combination with the stockholdings of the
14 two executrices.
15
Q
And what would be the reason for the
16 necessity of getting these documents for Bobby Mumma?
17
A
Well, the purpose is multiple. I'm not sure
18 exactly how to phrase this. The litigation is -- perhaps
19
acrimonious would be a proper word to use
and if you can
20 get the type of information that we want, it would make it
21 easier to make some sort of a settlement offer. I don't
22 know that that would ever come to fruition or not, but that
23 was one of my purposes.
24 The other purpose in mind is that some of the
25 things which go on within corporations and within the estate
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1 are not technically covered by an accounting process, and in
2 equity there is a duty of a beneficiary of a cestui que
3 trust, whatever you prefer to term it, to look out so he
4 won't have laches asserted against him for not taking all
5 steps available to him to look out for his interests.
6 And the other purpose is -- and you can find this
7 in the cases on corporate shareholders discovery -- that in
8 many instances if information is not forthcoming, it raises
9 suspicions, and often these suspicions can be eliminated by
10 the production of information. And the Courts have
11 recognized that that is a valued policy issue because it
12 often eliminates litigation or parts of litigation.
13
Q
As a result of your letter dated March 19th
14 to Mr. Martson and Mr. Kittredge, were you afforded the
15 opportunity to examine one single document?
16
A
No, I wasn't.
17 Q Were you notified by them dated April 16th,
18 1991, that they had no intention of providing you any
19 documentation?
20
A
Well, I got a letter from Tom Kittredge in
21 which he raised several issues in the letter about Bob's
22 potential standing, and he wanted to know if we had a case
23 on point. At that particular time I did not. I was working
24 with a lot of English cases and old cases based on equitable
25 discovery and considerations.
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1 I have since then however found a case by the
2 Supreme Court of Pennsylvania, a unanimous case that came
3 out of Allegheny County called the Estate of Rosenblum,
4 which had affirmed pretty close to four corners exactly what
5 I had been looking for and trying to devise in the way of an
6 argument which could give Bob a right to these documents as
7 a property right.
8
Q
The Estate of Rosenblum, 328 Atlantic Second
9 158, does that sound correct?
10
A
Sounds correct to me. I don't have the
11 citation in front of me.
12
Q
Mr. Shields, the bottom line is on April
13 16th, 1991, Morgan, Lewis, and Bockius indicated no
14 documents were forthcoming?
15
A
Correct.
16
Q
Did you follow up again with another written
17 request to avoid the necessity of having to come into this
18 courtroom and having a hearing to get documents?
19
A
Yes. On April 29th I wrote a return letter
20 to Mr. Kittredge and addressed some of his concerns, and one
21 of his concerns was Mr. Frey's position. At that point we
22 had already spoken to Mr. Frey about what his position was,
23 and he made it clear to us that according to his
24 interpretation of the Judge's order for appointment of
25 guardian ad litem, it was circumscribed by his own terms,
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1 and they did not include representing Bob's children in a
2 guardian of the estate capacity for general considerations
3 or concerns.
4
Q
And did you communicate Bob Frey's position
5 to Thomas Kittredge that Bob Frey's position was that he had
6 no legal basis to either request an accounting on his own
7 for the benefit of the children or joint heirs?
8
A
That's correct. I then reaffirmed that in
9 the rule to show cause which I later filed.
10
Q
And as a result or since your letter of April
11 29th, 1991, has the law firm of Morgan, Lewis, and Bockius
12 or any other law firm made any documents available to you
13 for your review?
14
A
No. The only documents that I'm aware of
15 having been made available were through the equity
16 proceedings, and there was some dispute as to what documents
17 would be available through those proceedings and as to
18 whether those which were available had, in fact, been turned
19 over.
20 There were various motions made back and forth
21 over a considerable period of time by both parties, and I'm
22 not really fully cognizant off the top of my head as to the
23 time frame or number of motions.
24
Q
Did you communicate to them or to anyone on
25 their behalf that you'd be willing to come to their offices
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1 rather than have the Court issue an order directing them to
2 deliver them to you?
3 Have you communicated a willingness to go to
4 Philadelphia, to go to Harrisburg, to go to the Harrisburg
5 office on your own and peruse the documents under normal
6 business hours and photocopy with the Bellows camera at our
7 own expense whatever documents you felt were needed?
8 A Well, in basic terms, yes; but in those
9 specific terms, no. I talked to Mr. Kittredge about it and
10 made it clear we would be accommodating, but I didn't go
11 into that amount of detail.
12 Q Well, let's go into detail now. Are you
13 willing to go to Philadelphia, to go to Harrisburg rather
14 than ask the Court to direct an order for them to deliver to
15 us?
16 Are you willing to go to them during normal
17 business hours at a convenient time to everybody without any
18 imposition on anybody to review the documents you feel
19 you're entitled to?
20 A certainly, and the reason for that is
21 principally that some of these documents we're requesting,
22 it would be necessary in all probability to run to various
23 business entities either within the estate or controlled by
24 the estate, and there's no intention of disrupting the
25 day-to-day business.
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Q
Now, what are the legal purposes of the
2 documents that you need? What is it that you would garner
3 from these documents that will help you and that you feel
4 that Bobby Mumma is entitled to under a property right as
5 opposed to a discovery proceeding?
6
A
Well, the principal purpose would be to
7 enlighten himself, and within that principal purpose there
8 would be subpurposes. Number one, it would alleviate
9 suspicion in general.
10 Number two, it would enable him to check on
11 various management practices; for instance, salaries or
12 perks which are given to the co-executrices which may be a
13 form of conflict of interest as a fiduciary.
14 There are numerous things which probably I could
15 list if I took two or three hours. If you want me to I can
16 elaborate a little bit more, but that is the general purpose
17 of it; and the other main purpose is simply to assert a
18 right which we believe he has and which is not subject to
19 being, you know, forestalled.
20
Q
Are you aware, Mr. Shields, through
21 communications with Bobby Mumma that because this
22 documentation has been denied to him, he hasn't even been
23 able to file an income tax return with the supporting
24 documentation that he needs since the death of his father?
25
A
Well, Bob related to me that he had had great
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1 difficulty--
2 MR. MARTSON: Your Honor, Mr. Mumma is in
3 court.
4 THE COURT: That's hearsay, so I will sustain
5 the objection.
6 BY MR. COSTOPOULOS:
7 Q Give the Court some examples, and though the
8 citation speak for itself and though your petition speaks
9 for itself, what kinds of documentation you're aSking to be
10 allowed to see.
11 A Well, we would particularly want to see the
12 various legal opinions that were rendered concerning the
13 administration of the estate. Now, we don't want and don't
14 expect to be able to see opinions that were rendered in
15 connection with the particular litigation which are not
16 related to the administration of the estate such as legal
17 strategies to defend against various actions which are
18 current or may become current later on.
19 It would also be understood, or we would make it
20 clear on the record, that the current approach to this, as I
21 understand it from having read numerous cases, is that if
22 there are any particular documents which the Respondents
23 don't want to turn over, that they are supposed to make a
24 list of them by category and by entry and make a short
25 statement of what those documents contain and why they
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1 feel -- I don't want to use the word discoverable because
2 it's not technically correct in this action -- but why they
3 shouldn't be made available for inspection.
4 And if something is really of say confidential
5 nature in terms of running the business, there is precedent
6 in this Court in the Warrell case where they can be rendered
7 for an in camera inspection; and if the Court determines
8 that certain portions should be blotted out, it can be done
9 or they can deny access to the entire document.
10
MR. COSTOPOULOS: May it please the Court,
11 the letter dated March 19th is Exhibit B in the pleadings,
12 and we'd ask that that be incorporated by reference into
13 this testimony.
14 The letter of April 16th, 1991, is referenced as
15 Exhibit C and the letter dated April 29th, 1991, is
16 referenced as Exhibit D, and we'd ask that it be
17 incorporated by reference into this proceeding.
18 BY MR. COSTOPOULOS:
19
Q
Directing your attention, Mr. Shields, to a
20 letter dated September 24th, 1991, would you indicate to the
21 Court what that letter represents?
22
A
Certainly.
THE COURT: Excuse me, that letter is not
23
24 attached or is it?
25
MR. SHIELDS: No, we'll have to make this a
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1 separate exhibit, Your Honor. We had filed a motion to
2 compel an accounting. There had been a long period of time
3 which had gone by in a complicated estate without an
4 accounting having been filed.
5 We filed a motion to compel that accounting as
6 part of the accounting which was recently filed. The firm
7 of Morgan, Lewis, and Bockius had one of their estate
8 attorneys involved with that named Joseph o'connor, and in
9 connection with the standard small paragraph that appears on
10 the front of each accounting which asks for questions to be
11 directed to a certain person or a certain place, I wrote to
12 Mr. O'Connor on the 24th and requested a number of items and
13 documents which were not clear from the accounting which had
14 been filed.
15 Mr. O'Connor responded and said that he would have
16 to check with the executrices as to whether they wanted to
17 make those things available to us or not, and as of this
18 date I still have not received that response.
19 Q Did you get a return letter dated September
20 27th, 1991, from Joseph O'Connor indicating that they would
21 go over your requests and that he would get back to you?
22 A Yes, that's what I was referring to in my
23 previous statement.
24 Q Did they ever get back to you?
25 A No.
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1 Q Have you gotten any documents that you
2 requested by letter dated September 24th?
3 I'd have to look at it, but I would say
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A
generally no
aware of.
Q
make --
A
All right. I would ask that the reporter
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9 clear, I have obtained partial copies of several of these
10 things by going downstairs and making photocopies, but as
11 far as getting any complete or official information, that is
12 not the situation at hand.
13 The only item here that I got part of was the
14 Pennsylvania Inheritance Tax Return, which is technically
15 pUblic record now, but we were not sure of the amendments or
16 the final assessments that may have been involved with it.
17 (Whereupon, Petitioner's Exhibits E and F
18 were marked for identification.)
19
MR. COSTOPOULOS: Your Honor, I'm handing to
20 you what's been marked Petitioner's Exhibits E and F.
21 BY MR. COSTOPOULOS:
22
Q
Mr. Shields, on behalf of BobbY Mumma are you
23 representing to the Court that you are, in your opinion,
24 proceeding in good faith?
25
A
Absolutely.
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1
Q
You're not proceeding to be vexatious?
2 You're not proceeding to be burdensome? You're proceeding
3 in good faith in requesting these documents?
4
A
Absolutely. There are two reasons for that.
5 Number one, we feel we have a clear legal right, and, number
6 two, if you read the various cases and even the
7 restatements, there's a two-fold reason.
8 There's an actual active duty upon the fiduciaries
9 to make this relevant information available to a beneficiary
10 and that hasn't been forthcoming in probably close to five
11 and a half years.
12
Q
Before I conclude my examination and before I
13 ask the Court if it has any questions of you, is there any
14 other factual information the Court should have that you
15 feel is pertinent to this proceeding?
16
A
There's some factual information, but I think
17 it would have to come in through Bob.
18
MR. COSTOPOULOS: All right. May it please
19 the Court, if you have any questions of Mr. Shields, I've
20 concluded my examination.
21
THE COURT: I have no questions and the
22 exhibits are admitted. You may step down.
23
THE WITNESS: Thank you.
24
MR. COSTOPOULOS: Your Honor, I have in court
25 today Bob G. Frey, the son of Bob M. Frey, and he's in a
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position to testify unless the Court would simply accept his
testimony that he's been working on this with his father and
he agrees with his father and would confirm that according
to their position, their appointment is limited to being
guardians ad litem.
And consistent with our letter directed to the
Kittredge firm marked Exhibit D is Bob Frey's opinion which
means they have no legal basis to either request an
accounting on their own for the benefit of the children or
to join in ours.
THE COURT: Want to put him on and let him
put it on the record?
Whereupon,
ROBERT G. FREY
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. COSTOPOULOS:
Q Please state your full name for the record.
A Robert G. Frey.
Q And, Mr. Frey, you're the son of Robert M.
Frey?
A Yes.
Q And you're a lawyer in the Cumberland County
community and allowed to practice law in the Commonwealth of
Pennsylvania?
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A
That's correct.
2 Q And in your capacity as a lawyer, have you
3 been working with your father on this case as the guardian
4 ad litem for the children?
5
A
Yes, I have.
6 Q And do you agree in your capacity as a lawyer
7 working with your father in this case that it's your opinion
8 that your appointment is specifically limited to being
9 guardian ad litem?
10 A Yes, I think the order was pretty specific as
11 to what our powers were.
12 Q And indeed the order you're referring to,
13 which is part of the petition, Your Honor, is set forth in
14 paragraph 25 of the petition. Let me direct your attention
15 to the order, Mr. Frey, and ask you if that is the order
16 you're making reference to?
17 A Yes, this is.
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MR. COSTOPOULOS: That's all I have, Your
Honor.
THE COURT: I have no questions.
(Whereupon, Petitioner's Exhibit G was marked
22 for identification.)
23 MR. COSTOPOULOS: I would ask at this time,
24 Your Honor, that these documents which are a certified copy
25 of a petition for the appointment of guardians of the
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estates of two minors pursuant to supreme Court Orphan's
Court rule 12.5 and chronologically this would be exhibit,
Petitioner's Exhibit G, and would ask that that certified
copy be made part of the record.
Whereupon,
ROBERT M. MUMMA, II
having been duly sworn, testified as follows:
DIRECT EXAMINATION
BY MR. COSTOPOULOS:
Q Mr. Mumma, please state your full name for
the record.
A Robert M. Mumma, II.
Q And your present address is?
A Box 58, Bowmansdale, Pennsylvania.
Q And you're the natural father of the
children, is that correct?
A That's correct.
Q And the names of those three children are?
A Robert M. Mumma, III, Susan Mann Mumma, and
Marguerite Mann Mumma.
Q Your father passed away when, Mr. Mumma?
A April 12th, 1986.
Q Now, I had made reference earlier today in
this proceeding to some problems you've run into with
something as basic as filing your income tax returns. Would
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1 you tell Judge Sheely what problems you've belabored under
2 as a result of your inability to get any documentation from
3 the lawyers for the estate or other family members?
4
A
Well, in 1986 they dissolved two
5 corporations, liquidated the assets of two corporations,
6 Pennsylvania Supply Company and Kim Company, and I was
7 vice-president of both corporations and the director.
8 The corporations have never been dissolved, but
9 the assets were liquidated into what was supposed to be
10 liquidated trusts. Those assets -- then the real property
11 was supposed to be going to a tenant-in-common arrangement
12 and the personal property was to be directed to the
13 shareholders.
14 As vice-president of the corporation and as a
15 director and as a shareholder of the corporation I have
16 asked for a list of the various personal items, and they
17 have refused to give me my list of the stocks, automobiles,
18 any property that has come through this liquidation.
19 In 1986 Mr. Hadley showed up on the last date to
20 file the return and included in that return apparently a
21 gain on the sale of certain assets. I've never gotten a
22 list of the assets.
23 I haven't been able to even get a description of
24 what he claims was a gain, and in court they have sworn that
25 what I sold was my stock in union Quarries, Inc., which
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1 was -- I mean, I never understood any of that.
2 And they're refusing -- I mean, I can't get even
3 basic information as to the tax audit on that return. I
4 would not be able to tell them what the various schedules
5 represented, and I have yet to get any of this information.
6 In my own estate planning -- I mean, I'd like to
7 see to it that my kids don't have to go through this. In
8 my own estate planning I can't even plan what I want to do
9 or achieve because I don't even know what assets mayor may
10 not be in the trust of this estate or how they're being
11 managed.
12 Q And in an effort to get what documents you
13 need, was that one reason you retained Charlie Shields to
14 try to do so amicably with correspondence to Morgan, Lewis,
15 and Bockius?
16
A
Yes. Up until April 12th, 1986, we all knew
17 what interest we had in various properties, various
18 corporations, everything. My father at least once a year
19 would have a meeting. He would have Bill Boswell there.
20 They would layout everything that they had done in the
21 previous year and what they intended to do.
22 Since April 12th, 1986, there has been no
23 information forthcoming on anything, and even the real
24 property that they claim was put into this
25 tenants-in-common, they refused to give the tenants any
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1 information as to what they're doing with the real property.
2 They may have sold it for all we know.
3 Q And you don't even know that?
4 A We don't know what they're doing, who they're
5 negotiating with, what leases there are. I had observed or
6 I knew of one piece of property that was adjacent to another
7 piece that I owned that didn't have a lease on it that I
8 wanted to lease to make my property -- give it access -- and
9 they refused to even discuss it with me.
10 Q Mr. Mumma, let me direct your attention to an
11 affidavit that's been attached to our petition filed with
12 this Court asking their firm -- that the Court direct that
13 these documents be turned over. Is this your signature on
14 the affidavit?
15 A Yes, it is.
16 Q And I believe it's dated October the 2nd,
17 1991, according to the face of the affidavit, is that
18 correct?
19 A That's correct.
20 Q And without going through the averments
21 you've indicated are true and correct to the best of your
22 knowledge, information, and belief, if asked again whether
23 the averments in this petition that we've represented to the
24 Court are true and correct to the best of your knowledge,
25 information, and belief, would your answer be the same today
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that it was?
A
Yes, it would.
MR. COSTOPOULOS: Mr. Mumma, I have no
further questions. Judge Sheely, if you have any questions.
THE COURT: I have none. Mr. Martson, you
said you're not prepared to ask him any questions, but I'll
permit you to do so if you wish to. I have none.
MR. MARTSON: I want to just ask one area.
CROSS-EXAMINATION
BY MR. MARTSON:
Q Mr. Mumma, in regard to your income tax
problem, are you relating that to the dissolution or
liquidation of the two companies only and not your recent
income tax returns?
A well, I mean, this goes -- the 1986 return
would be the basis for ensuing returns.
Q I understand.
A You have to understand then that my position
is that I have never ever sold my stock or the stock that
was to come to me from Union Quarries, Inc. Union Quarries
is a Subchapter S Corporation, and they have made
distribution since then.
If I am, as I believe, a shareholder of Union
Quarries, Inc., I have an ongoing loss or gain situation
that needs to be included in all of my subsequent returns
24
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1 just on those. Even though it's a small share, it's a share
2 that I'm not reporting one way or the other because I
3 don't -- I mean, we don't have any records.
4 I may have -- I may have indeed -- Union Quarries
5 may have indeed paid dividends or paid the shareholders
6 dividends, dividends that should have been reported on my
7 return if I indeed, as I believe, own the shares of stock of
8 Union Quarries that were to be distributed to me through
9 these liquidations.
10
Q
Are you saying for the Court that you have
11 received dividends in union Quarries?
12
A
I'm saying to the Court, Your Honor, that
13 when they distributed the liquidated corporations, a
14 liquidated trust was to be set up for all of the non real
15 estate assets and that in that liquidating trust was to go
16
any shares of other corporations that they
that those
17 corporations would have owned. We do not now and have never
18 seen what they did with those.
19 There was testimony made, you may remember, back
20 in the March hearings, and Mr. Hadley has told me that the
21 sale of that stock was not included in any income tax
22 return. Mrs. Morgan has told me on several occasions, look
23 at your tax return. You've paid tax on the gain from the
24 sale of that stock. So you get two different stories from
25 the very people that are supposed to be supplying the
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1 information.
2
Q
Well, let's get back to my question. I'm
3 trying to make it very narrow. Have you received any
4 dividends from Union Quarries?
5
A
Q
correct?
A
Q
Quarries?
A
6
7
8
9
10
13
That's what I'm telling you. I don't know.
Well, if you get a dividend, you get a check,
Unless they put it in the liquidating trust.
But you did not receive any checks from Union
Q
All right. So that as far as the income tax
14 return problem, you're talking about -- it's basically
15 around the time when the corporations were liquidated?
16
No, it's ongoing. If that stock is where it
A
17 should be, it's in a liquidating trust which I have an
18 interest in: and if there were dividends paid, I should be
19 paying tax on them.
20
Q
All right. You did not get any statement
21 from the estate that the dividend was directed to you?
22
A
Therein lies the problem. We get no
23 statements from the estate or Morgan, Lewis, and Bockius
24 regarding what they're doing with the assets from the
25 liquidating corporations.
26
1291
" .
1
Q
I'm talking about the IRS form where
2 dividends are recorded like a 1099.
3
A
Well, I wouldn't be familiar with that.
You don't know about a 1099?
4
Q
5
A
If they send a 1099, it would go to whoever
6 is holding the shares. If that's the liquidating trust,
7 they would get the 1099.
8
Q
Did you -- but you didn't get a 1099 from the
9 estate?
10
A
No, but I think I should have.
MR. MARTSON: All right. That's all, Your
11
12 Honor.
13
THE COURT: I have no questions. Thank you.
14 You may step down.
15
MR. COSTOPOULOS: Your Honor, that concludes
16 our testimony.
17
THE COURT: Do you have an extra copy of your
18 Exhibit G to give to Mr. Martson?
19
MR. MARTSON: I think we did get that, Your
20 Honor. We did get that petition, Your Honor.
21
THE COURT: Does the Petitioner have any
22 further testimony that they want to present?
23
MR. COSTOPOULOS: I have no further
24 testimony, Your Honor, but I do have a motion. I would ask
25 that the petition that we have filed, in light of the
27
1292
.. .
1 Respondents failing to appear or give any explanation as to
2 why they're not here, that a default judgment be entered in
3 our favor.
4 The rule to show cause was served. The sheriff
5 served it. They had a duty to come forward. They had a
6 burden, and they failed to meet it; therefore, my motion is
7 for a default judgment in favor of Robert Mumma.
8 THE COURT: I'll tell you what, I'll defer
9 any action on this and give you a couple days. If you give
10 me a case that tells me I can do that since they didn't show
11 or really file an answer to it, I'll follow the law and do
12 it.
13 MR. COSTOPOULOS: Thank you, Judge.
14 THE COURT: What I'll do -- how much time do
15 you need, Mr. Shields?
16 MR. SHIELDS: Week to ten days?
17 THE COURT: I'll give you ten days.
18 MR. COSTOPOULOS: And within that ten-day
19 period, we'll file a brief to get the relief we're now
20 requesting, which is a default judgment. In addition, we'll
21 also file in that brief the support of the legal authority
22 for asking for the relief we're asking for on the merits.
23 I can tell you the key cases are that Rosenblum
24 case, which I'll just hand to the Court. We'll make it part
25 of our brief, and an opinion this Court wrote which shed
28
1293
.. .
1 considerable light on it, an opinion you wrote in January of
2 1982.
3 And though I'm handing them to you, Judge, I'm
4 giving you these two opinions, we're going to make them part
5 of our memo to you within ten days.
6 THE COURT: Mr. Martson, you can notify your
7 Philadelphia clients that they have ten days also to file
8 anything they wish to file on whether or not I should grant
9 a default judgment and make the rule absolute. So I'll give
10 both ten days on that issue.
11 (Whereupon, an order of court was entered.)
12 (Whereupon, the above proceeding concluded.)
13
14
15
16
17
18
19
20
21
22
23
24
25
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- .- <. .
CERTIFICATION
I hereby certify that the proceedings are
contained fully and accurately in the notes taken by me on the
above cause and that this is a correct transcript of the same.
O-LJ I'CL r. oncl\~
Laura F. Handley
Official Court Reporter
The foregoing record of the proceedings on the
hearing of the within matter is hereby approved and directed to
be filed.
~))s) fir!
"
H rold E. Sheely,
.t~' /'
"L~</
P.J'L-J
:1295