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HomeMy WebLinkAbout12-30-91 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 Attorneys for Barbara McK. Mumma and Lisa M. Morgan IN RE ESTATE OF ROBERT M. MUMMA, COURT OF COMMON PLEAS : CUMBERLAND COUNTY : ORPHAN'S COURT DIVISION Deceased. : NO. 21-86-398 RESPONSE OF BARBARA McK. MUMMA AND LISA M. MORGAN TO PETITION OF ROBERT M. MUMMA, II TO COMPEL COMPLIANCE WITH REOUEST/DEMAND FOR DOCUMENTS Barbara McK. Mumma and Lisa M. Morgan, by and through their undersigned counsel, hereby respond to the petition of Robert M. Mumma, II ("RMM 11") to compel compliance with his request/demand for documents. Mrs. Mumma and Mrs. Morgan incorporate by reference herein their accompanying memorandum of law. 1. Denied. This paragraph contains conclusions of law to which no response is required. All such averments therefore are deemed to be denied. 2. Denied. This paragraph contains conclusions of law to which no response is required. All such averments therefore are deemed to be denied. By way of further response, 20 Pa. Cons. stat. Ann. ss 769 and 772 have been repealed, and therefore can have no application to the instant petition. 1343 3. Denied. This paragraph contains conclusions of law to which no response is required. All such averments therefore are deemed to be denied. 4 and 5. Admitted. 6. Denied. This paragraph contains conclusions of law to which no response is required. All such averments therefore are deemed to be denied. 7. Admitted. 8 through 13, inclusive. Denied as stated. The allegations of these paragraphs purport to set forth the provisions of the Will of Robert M. Mumma ("the Will"), and therefore are denied. The provisions of the will speak for themselves. These paragraphs also contain conclusions of law to which no response is required. 14. Denied. On the contrary, upon the death of Robert M. Mumma his children became remaindermen whose interests were not vested, but rather were contingent upon their survival of Barbara McR. Mumma. 15. Admitted in part, denied in part. It is admitted only that RMM II and Sally Osler Songster are the natural parents of Robert M. Mumma, III, and that Robert M. Mumma, III was born on May 12, 1982. The remaining allegations of this paragraph are conclusions of law to which no response is required. In addition, it is denied that Robert M. Mumma, III holds an "executory interest" under the Will. Robert M. Mumma, III is a contingent remainderman of the Trusts under the Will. 2 1.344 16. Admitted in part, denied in part. It is admitted only that RMM II and Susan Regan Mumma are the natural parents of Susan Mann Mumma and Marguerite Mann Mumma, and that Marguerite Mann Mumma and Susan Mann Mumma were born on June 19, 1987 and October 12, 1990, respectively. The remaining allegations of this paragraph are conclusions of law to which no response is required. In addition, it is denied that Susan Mann Mumma and Marguerite Mann Mumma hold "executory interests" under the will. On the contrary, Susan Mann Mumma and Marguerite Mann Mumma are contingent remaindermen of the Trusts under the Will. 16a. Admitted. By way of further response, in his petition filed with the Court of Common Pleas of York County, Orphan's Court Division seeking his appointment and that of Gary M. Gilbert as guardians of the estates of Susan Mann Mumma and Marguerite Mann Mumma, RMM II stated, inter alia, that he and Gary M. Gilbert "do not have any individual interest that is adverse to the financial interests" of Susan Mann Mumma and Marguerite Mann Mumma. At that time, RMM II did not disclose to the York County Court that (a) RMM II has been litigating in this Court and in the Court of Common Pleas of Dauphin County against the Estate of Robert M. Mumma in which his children, as contingent remaindermen, have a financial interest; (b) RMM II has claimed a right of first refusal with respect to any offer to purchase certain operating businesses and real property constituting the bulk of 3 13.15 the assets of the Estate and the Marital Trust established under the will. His claimed right of first refusal constitutes a substantial encumbrance upon the ability of the Estate and the Marital Trust to sell such businesses and the real estate for fair market value, to the detriment of all of the beneficiaries of the Estate and the Marital Trust, including the minor children of RMM II: (c) RMM II owns and manages businesses which operate in direct competition with businesses owned by the Estate and the Marital Trust, to the detriment of all of the beneficiaries of the Estate and the Marital Trust, including the minor children of RMM II; and (d) RMM II has sought, in the course of the litigation referred to at (a) above, to obtain from Mrs. Mumma and Mrs. Morgan sensitive business information concerning the businesses owned by the Estate and the Marital Trust, which information would give RMM II's businesses a competitive advantage over the businesses owned by the Estate and the Marital Trust, to the detriment of all of the beneficiaries of the Estate and the Marital Trust, including the minor children of RMM II. 17. Admitted. By way of further response, Mr. Klein had at that time also been retained as counsel by RMM II. 18. Admitted in part, denied as stated. It is admitted that the document was entitled "Disclaimer by Robert M. 4 ~346 Mumma, II." The remainder of the allegations of this paragraph are denied. By way of further response, the "Disclaimer by Robert M. Mumma, II" speaks for itself. 19. Admitted in part, denied in part. It is admitted only that the "Disclaimer of Robert M. Mumma, II" was filed in the Office of Register of wills of Cumberland County on January 12, 1987. It is denied that there exists any legitimate dispute as to the factual circumstances surrounding that filing. 20. Denied as stated. It is admitted that Mrs. Mumma and Mrs. Morgan negotiated with a large, financially sound and reputable Irish company for a sale of certain businesses, real property and other assets for cash. Mrs. Mumma and Mrs. Morgan had, in the exercise of their fiduciary duties, determined that a sale was in the best interests of all of the beneficiaries under the Will, and that the cash price offered by the Irish company represented a good deal for the Estate and the Marital Trust. Indeed, Linda M. Roth and Barbara M. McClure, the other daughters of Robert M. Mumma, had expressed their agreement to the proposed sale. Mrs. Mumma and Mrs. Morgan were unable to consummate the sale to the Irish company because of the vexatious legal positions taken by and other actions of RMM II. By way of further response, it is denied that the proposed sale in any way contravened the "true intention" of Robert M. Mumma, or that RMM II was at any time prepared or financially able to purchase the businesses, real property and assets on terms even remotely as 5 1317 beneficial to the Estate and the Marital Trust as the cash offer made by the Irish company. 21. Denied as stated. It is admitted only that, on December 27, 1988, Mrs. Mumma and Mrs. Morgan, in their individual capacities and as executrices of and trustees under the Will, commenced an action in this Court, docketed at No. 66 Equity 1988. In that action, Mrs. Mumma and Mrs. Morgan seek declaratory judgments that (a) two tenancy-in-common agreements are valid and enforceable, (b) that certain powers of attorney executed by RMM II pursuant to and in connection with those agreements also are valid and enforceable, and (c) that a right of first refusal asserted by RMM II to purchase the stock and/or assets of Pennsy Supply, Inc. is non-existent or invalid. 22. Denied. By way of further response, the averments of paragraphs 20 and 21 above are incorporated herein by reference. 23. Admitted in part, denied in part. It is admitted that due to his filing of the disclaimer, RMM II ceased to be a beneficiary under the will, and that, as a result, he lacked standing to challenge the actions of Mrs. Mumma and Mrs. Morgan as executrices of the Estate of Robert M. Mumma. It is denied that there exists any legitimate dispute as RMM II's decision to file his disclaimer or as to the filing of that document. By way of further response, Robert M. Frey, Esquire, guardian ad litem for RMM II's minor children, has contested RMM II's attempts to revoke his disclaimer. 6 ~348 24. Admitted. 25. Denied as stated. It is admitted that this Court issued the decree set forth in this paragraph, and that that decree extended to all minor persons interested in the Estate of Robert M. Mumma. The petition to appoint the guardian ad litem referred only to Robert M. Mumma, III and Susan Mann Mumma by name because they were the only living children of RMM II at the time of the filing of the petition. 26. Denied as stated. It is denied that the appointment of Mr. Frey as guardian ad litem was for "limited and specified purposes." On the contrary, the decree appointing the guardian authorized Mr. Frey to represent minor persons interested in the Estate of Robert M. Mumma in all litigation pending as of December 29, 1988, as well as "in any further or other proceedings in the Court of Common Pleas of Cumberland County or the Court of Common Pleas of Dauphin County, Pennsylvania relating to or arising out of such matters." By way of further response, the decree appointing Mr. Frey as guardian ad litem speaks for itself. 27 through 33, inclusive. Admitted. 34. Denied as stated. The guardian ad litem has filed exceptions to this Court's decision that RMM II is entitled to revoke his disclaimer. No ruling has yet been had with respect to those exceptions. 35 through 39, inclusive. Admitted. 7 1349 40. Denied as stated. It is admitted only that counsel for Mrs. Mumma and Mrs. Morgan received the letter attached as Exhibit B to the instant petition. By way of further response, the letter speaks for itself. 41. Denied as stated. It is admitted that counsel for Mrs. Mumma and Mrs. Morgan prepared and sent the letter attached as Exhibit C to the instant petition. That letter requested that RMM II identify the statutory or other legal basis for RMM II's request/demand. The letter also noted that RMM II "is an adverse party to [Mrs. Mumma and Mrs. Morgan, in their individual capacities and as executrices/trustees] in six separate and distinct legal actions in Cumberland County, and additional actions in Dauphin County," that the documents requested "contain sensitive business information, or relate to ongoing litigation with RMM II," and that RMM II is the owner and/or operator of businesses which compete with Estate-owned businesses. Given the highly sensitive nature of much of the business and legal documentation sought by RMM II, counsel for Mrs. Mumma and Mrs. Morgan expressed concern as to RMM II's motives in demanding the information and requested that RMM II explain his reasons for the request/demand. Lastly, the letter observed that there existed "serious questions as to [RMM II]'s standing to make the request/demand," especially in light of the disputed status of his disclaimer and of the appointment of Robert M. Frey as Guardian ad litem of RMM II's minor children. By way of further response, the letter speaks for itself. 8 1350 42. Denied as stated. It is admitted only that counsel for Mrs. Mumma and Mrs. Morgan received the letter attached as Exhibit D to the instant petition. By way of further response, that letter speaks for itself. 43. Denied. By way of further response, the executrices/trustees have on various occasions made available to RMM II many of the documents demanded in the instant petition. 44 through 49b. Denied. These paragraphs purport to set forth the specific demands for documents now being made by RMM II, and therefore no response to these paragraphs is required. By way of further response, it is denied that RMM II is entitled to review or inspect any of the documents listed in these paragraphs. 50. Denied. By way of further response, it is denied that RMM II has in any way been deprived of information to which he is entitled. In particular, Mrs. Mumma and Mrs. Morgan on August 9, 1991, filed interim accounts of their acts and transactions as executrices of the Estate of Robert M. Mumma and as trustees of the Marital and Residuary Trusts under the will. Those accounts covered the period from April 12, 1986 to March 31, 1991 with respect to the Estate, the period from November 19, 1986 to March 31, 1991 with respect to the Marital Trust, and the period from November 4, 1986 through March 31, 1991 with respect to the Residuary Trust. Pursuant to those accounts, Mrs. Mumma and Mrs. Morgan provided detailed information with respect to the 9 1351 financial condition of the Estate and of the Trusts, and also as to their activities with respect thereto. 51. Denied. This paragraph contains conclusions of law to which no response is required. All such averments therefore are deemed to be denied. By way of further response, if it is held that RMM II was not entitled to revoke his disclaimer, RMM II would not be a beneficiary under the Will. 52. Denied. On the contrary, RMM II's attempt to obtain access to documents by means of the instant petition is simply a part of RMM II's ongoing pattern of vexatious interference with the administration of the Estate, of the Trusts, and of the business owned thereby. RMM II's efforts in this regard have consisted of the filing of more than half a dozen lawsuits, the institution of bar association inquiries against Mrs. Morgan, and the constant harassment of Mrs. Mumma and Mrs. Morgan in their exercise of their fiduciary duties. 53. Denied as stated. It is denied that RMM II seeks to enforce any valid property rights by filing the instant petition, or that he is entitled to have access to the documents demanded therein. 54. Denied. RMM II seeks in the instant petition to obtain the same documents which he previously has sought to obtain in various litigation, including, inter alia, No. 66 Equity 1988, Nos. 14, 15 and 84 Equity 1990, and various litigation commenced in Dauphin County. By way of further response, RMM II has, in conjunction with the aforementioned 10 1352 litigation and otherwise, received from Mrs. Mumma and Mrs. Morgan thousands of pages of documentation relating to the Estate, the Trusts, and various businesses and properties owned by them. 55. Denied. It is denied that RMM II is entitled to the documents sought in the instant petition. In addition, it is denied that RMM II is entitled to documentation regarding the Estate irrespective of the purpose for which he desires such information. Moreover, it is denied that RMM II is acting in good faith in asserting the instant request. On the contrary, RMM II is seeking to gain access to, inter alia, sensitive business information regarding businesses and properties owned by the Estate, which information would be invaluable to him as the owner of businesses which operate in direct competition with businesses owned by the Estate. RMM II also seeks the information to assist him in obstructing any proposed sale of businesses, properties or other assets owned by the Estate. Mrs. Mumma and Mrs. Morgan are bound by their fiduciary duties to, inter alia, Linda M. Roth and Barbara M. McClure, their children, and the unborn children of RMM II, to refrain from any actions which might diminish or deplete the value of the Estate or any of its assets. supplying RMM II with sensitive and confidential information regarding the Estate or its assets would constitute a breach of Mrs. Mumma and Mrs. Morgan's fiduciary duties and obligations. 11 1353 56. Denied. On the contrary, Mrs. Mumma and Mrs. Morgan on August 9, 1991, filed interim accounts of their acts and transactions as executrices of the Estate of Robert M. Mumma and as trustees of the Marital and Residuary Trusts under the will. Those accounts covered the period from April 12, 1986 to March 31, 1991 with respect to the Estate, the period from November 19, 1986 to March 31, 1991 with respect to the Marital Trust, and the period from November 4, 1986 through March 31, 1991 with respect to the Residuary Trust. Pursuant to those accounts, Mrs. Mumma and Mrs. Morgan provided detailed information with respect to the financial condition of the Estate and of the Trusts, and also as to their activities with respect thereto. 57. Denied as stated. It is admitted that the first accounting filed by Mrs. Mumma and Mrs. Morgan did not take place until more than five years after the death of Robert M. Mumma. However, given the size and complexity of the Estate, there is nothing unusual or improper in the fiduciaries' decision not to cause the Estate and the Trusts to incur the expense of filing accounts until five years after Robert M. Mumma's death. By way of further response, the averments of paragraph 56 above are incorporated herein by reference. 58. Denied as stated. Mrs. Mumma and Mrs. Morgan had planned to file accounts in the normal course in the summer of 1991. It is true that RMM II filed a petition to compel accountings before Mrs. Mumma and Mrs. Morgan filed their 12 1354 accounts. However, preparation of such accounts was underway before RMM II's petition was filed. By way of further response, the averments of paragraphs 56 and 57 above are incorporated herein by reference. 59. Denied. It is denied that RMM II has any duty to review documents relating to the Estate or the Trusts. By way of further response, RMM II is not entitled to review the documents sought by the instant petition. WHEREFORE, Barbara McK. Mumma and Lisa M. Morgan respectfully request that this Court deny the Petition of Robert M. Mumma, II to Compel Compliance with Request/Demand for Documents. 4:.J.f!~ BJ~~~reen MORGAN, LEWIS & BOCKIUS 2000 One Logan square Philadelphia, PA 19103 (215) 963-5636, 5079 William F. Martson MARTS ON , DEARDORFF, WILLIAMS & OTTO 10 East High street Carlisle, PA 17013 (717) 243-3341 Attorneys for Barbara Mck. Mumma and Lisa M. Morgan 13 1.355 CERTIFICATE OF SERVICE I hereby that the foregoing Response of Barbara McK. Mumma and Lisa M. Morgan to the Petition of Robert M. Mumma, II to Compel compliance with Request/Demand for Documents and their accompanying memorandum of law were this 27th day of December, 1991, served by first-class mail, postage prepaid, upon: Charles E. Shields, III National Bank Building 2 West Main Street Mechanicsburg, PA 17055 william C. Costopoulos 831 Market Street Lemoyne, PA 17043 red~ Attorney for Barbara Mck. Mumma and Lisa M. Morgan 14 1356 . f" ' 1'" " t..~, "."" oJ,' !.,J