HomeMy WebLinkAbout01-10-92
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IN RE: ESTATE OF
ROBERT M. MUMMA
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
: NO. 21-86-398
ORDER OF COURT
AND NOW, January 9, 1992, the order presented this date
requesting that the hearing set for Friday, January 17, 1992, at
1:30 p.m., be cancelled is REFUSED. This particular hearing is
one of many inVOlving the Mumma family and this hearing was set
on December 26, 1991.
JJ;;J~J!~
H rold E. Sheery, P.J.
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IN RE:
ESTATE OF
ROBERT M. MUMMA
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
:
: NO. 21-86-398
:
ORPHAN'S COURT DIVISION
o ROE R
AND NOW, this
day of January, 1991, upon consideration
of the within Motion, it is hereby ordered that the hearing on the
Petition for the Appointment of a Temporary Fiduciary scheduled
before this Court on the 17th day of January, 1992, at 1: 30
o'clock, P.M. is hereby canceled.
BY THE COURT:
J.
1.375
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IN RE: ESTATE OF
ROBERT M. MUMMA
:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 21-86-398
ORPHAN'S COURT DIVISION
MOTION TO STAY HEARING SCHEDULED
FOR JANUARY 17. 1992
BARBARA McK. MUMMA AND LISA M. MUMMA, Executrices of the
Estate of Robert M. Mumma, Deceased (Estate), by their counsel,
Goldberg, Katzman & Shipman, P.C., file this Motion, representing
to the Court as follows:
1. A Petition for Expedited Hearing on the Appointment of a
Temporary Fiduciary was filed by Robert M. Mumma, II and Gary M.
Gilbert with this Court on or about December 17, 1991, which
Petition the Court apparently granted by its Order of December 26,
1991, setting a hearing for January 17, 1992.
2. The Court's Order establishing said hearing was issued
less than ten (10) days after the filing of the Petition for
Expedited Hearing and prior to the time an answer could be filed by
the Estate.
3. Had the Court been fully and properly advised, it could
have discerned several reasons why there was no basis or reason to
even have a hearing on the Petition to Appoint Temporary Fiduciary,
let alone expedite the hearing; in fact, said matter should be
stayed or permanently dismissed, as follows:
1.376
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(a) The reason for the expedited hearing, as set forth
in paragraphs 6 through 9 of the Petition requesting
same, was an alleged "impending financial harm to the
estate. "based upon an asserted default in loan
obligations to Dauphin Deposit Bank and Trust Company
(Bank) as set forth in paragraphs 8 and 9 of the
Petition. In fact, at or prior to the time said Petition
was filed with this court, the Bank had already
determined to renew the outstanding loans of Lebanon
Rock, Inc., as per letter of December 18, 1991, a copy of
which is herewith attached as Exhibit "A". Both the
Estate and Robert M. Mumma, II have agreed to the terms
of the aforesaid letter of December 18, 1991, and there
is no "impending financial harm" to the Estate or to
Lebanon Rock, Inc. as a result of the matters set forth
in the Petition.
(b) Pursuant to Pa. Rule of civil Procedure 213.1, the
Estate has petitioned the Court of Common Pleas of
Dauphin County to stay the proceedings in this Court with
respect to the Petition for Appointment of a Temporary
Fiduciary for reasons set forth therein, a copy of said
Motion being attached hereto and marked Exhibit "B".
Requiring the Estate to start allover again to litigate
the similar issues that have been in litigation in
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Dauphin County for more than three years, which are near
a conclusion, and for which hearings were held in
December of 1991 and are scheduled for January, February
and March of 1992, would constitute "impending financial
harm to the Estate," as well as a wasteful use of
judicial resources. A copy of the Order of the Dauphin
County Court dealing with some of the issues, and
scheduling hearings, is attached hereto as Exhibit "C",
and a copy of Judge Schaffner's letter of December 26,
1991, dealing further with hearings before him is
attached hereto as Exhibit "D".
(c) The standing of Robert M. Mumma, II and Gary M.
Gilbert before this Court appears to be in serious
question; by Order of December 29, 1988, this Court
appointed Robert M. Frey, Esq., as Guardian ad Litem for
the "minor persons interested in the estate" with
authorization to represent them in all matters relating
to the sale of certain estate assets and "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."
The Petition to the York County Court
appointing Robert M. Mumma, II and Gary M. Gilbert as Co-
Guardians of the Estates of the two minor daughters of
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1-378
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VERIFICATION
I, Ronald M. Katz;man, Esq., counsel for Barbara McK.
Mumma and Lisa M. Morgan, Executrices of the Estate of Robert M.
Mumma, Deceased, having full and complete knowledge of the facts
set forth herein, hereby verify that the statements made in this
MOTION TO STAY HEARING are true and correct to the best of my
information, knowledge and belief.
I understand that false
statements herein are made sUbject to the penalties of 18 Pa. C.S.
S4904, relating to unsworn falsification to authorities.
L@~~
RONALD M. KATZ , ESQ.
Date: January
?
, 1992
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1.38.1
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CERTIFICATE OF SERVICE
I hereby certify that I am this date serving a copy of the
foregoing Motion to Stay Hearing upon the person(s) and in the
manner indicated below, which service satisfies the requirements of
the Pennsylvania Rules of civil Procedure, by depositing a copy of
same in the united States Mail, Harrisburg, Pennsylvania, with
first-class postage, prepaid, as follows:
Charles E. Shields, III Esq.
Commonwealth National Bank Bldg.
2 West Main Street
Mechanicsburg, PA 17055
William C. Costopoulos, Esq.
831 Market Street
Lemoyne, PA 17043
GOLDBERG, KATZMAN & SHIPMAN, P.C.
By:
~.,,(WAk4i
RONALD M. KATZMAN, ESQUIRE
320E Market Street
P. O. Box 1268
Harrisburg, PA 17108-1268
(717) 233-4161
Attorney I.D. #07198
Attorneys for Estate of Robert M.
Mumma, Deceased
Dated: January~, 1992
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Dauphin Deposit Bank
and Trust Company
213 MARKET STREET. HARRISBURG. PENNSYLVANIA 171015
717255-2388
MICHAEL D. ZARCONE
EXECUTIVE VICE PRESIDENT
December 18, 1991
Lebanon Rock, Inc.
Mr. Robert M. Mumma, II and
Estate of Robert M. Mumma
Mrs. Barbara McK. Mumma, Co-Executrix
Mrs. Lisa M. Morgan, Co-Executrix
P.O. Box 1531
Harrisburg, PA 17105
RE: Lebanon Rock, Inc.
Dear Mr. Mumma, Mrs. Mumma and Mrs. Morgan:
We are pleased to advise you that Dauphin Deposit Bank and
Trust Company (hereinafter Bank) has approved extensions to the
loans of Lebanon Rock, Inc. (hereinafter Borrower) conditionally
upon the approval and concurrence of all parties to the loan
transaction as follows:
1. $339,500 balance of an original $1,000,000 secured demand
loan dated December 29, 1986 to mature December 31, 1992.
2. $457,500 balance of an original $900,000 secured term
loan dated December 29, 1986, to mature December 31,
1992.
3. $144,200 unsecured stand-by letter of credit to expire
December 31, 1992.
The above loans are guaranteed by Robert M. Mumma, II in the
amount of $1,020,000 and the Estate of Robert M. Mumma in the
amount of $1,020,000.
During the term of the loans, the Borrower agrees to provide
the Bank with the following:
1. Annual CPA prepared financial statements for Lebanon
Rock, Inc.
2. Quarterly company-prepared financial statements for
Lebanon Rock, Inc.
1.383
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Lebanon Rock, Inc.
Mr. Robert M. Mumma, II and
Estate of Robert M. Mumma
Mrs. Barbara McK. Mumma, Co-Executrix
Mrs. Lisa M. Morgan, Co-Executrix
December 18, 1991
Page 2
3. Annual financial statements for the guarantors, Robert M.
Mumma, II and the Estate of Robert M. Mumma.
The collateral for these loans as referenced in the original
loan documentation shall J::emain in effect during the term of the
loans.
The extension of the loans is contingent upon the Borrower and
the Bank entering into mutually acceptable loan documentation
setting forth the terms and conditions stated herein and other such
terms, conditions, covenants, and warranties, and representations
as may be required by the Bank and be mutually acceptable to the
Borrower and the Bank. All terms and conditions contained herein
shall survive the execution of such loan documentation. Enclosed
please find a Commercial Loan Note Addendum which must be signed
and returned to the Bank to extend the term loan.
Please acknowledge your concurrence with these terms and
conditions by signing, dating, and returning the enclosed copy of
this letter to the Bank on or before December 31, 1991. If we do
not receive written acceptance of the Borrower and Guarantors on or
before December 31, 1991, all loans will be due and payable in full
immediately.
~~
Michael D. Zarcone
Executive Vice President
MDZ/abs
Enclosure
cc: Paul B. Shannon
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IN RE:
LITIGATION INVOLVING
IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
ELCO CONCRETE PRODUCTS, INC.
ROBERT M. MUMMA, II
LISA MUMMA MORGAN
BARBARA McK. MUMMA
THE ESTATE OF ROBERT M. MUMMA,
et al.
NO.
NO.
NO.
NO.
4678
4722
3210
4744
EQUITY
EQUITY
S 1988
EQUITY
:
o R D E R
AND NOW, this
day of January, 1992, upon consideration
of the within Motion, it is hereby ordered that:
1. The Petition For The Appointment Of A Temporary
Fiduciary, presently pending before the Court of Common Pleas of
Cumberland County, Orphans' Court Division, at No. 21-86-398,
including the hearing scheduled for January 17, 1992, at 1: 30
o'clock, P.M., is hereby stayed;
2. The within matters shall continue to be considered by
this Court, and the hearings scheduled pursuant to the Court's
Order of October 18, 1991, as most recently amended by its letter
of December 26, 1991, shall proceed unless postponed or continued
for reasons other than the pendency of the Petition For The
Appointment Of A Temporary Fiduciary filed in Cumberland County.
3. A Rule is hereby entered upon Robert M. Mumma, II, and
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Gary M. Gilbert, to show cause, if any he has, why the stay of the
Petition For The Appointment Of A Temporary Fiduciary, filed in
Cumberland
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continued until
after
final
decision on the matters currently before this court to the above
terms and numbers.
Said Rule is returnable
, 1992.
BY THE COURT:
HERBERT A. SCHAFFNER,
J.
:1386
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Ronald M. Katzman, Esq.
Attorney 10 # 07198
Goldberg, Katzman & Shipman, P. C.
320E Market Street, Strawberry Sq.
P. O. Box 1268
Harrisburg, PA 17108
(717)234-4161
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IN RE: LITIGATION INVOLVING
IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
ELCO CONCRETE PRODUCTS, INC.
ROBERT M. MUMMA, II
LISA MUMMA MORGAN
BARBARA McK. MUMMA
THE ESTATE OF ROBERT M. MUMMA,
et al.
NO.
NO.
NO.
NO.
4678
4722
3210
4744
EQUITY
EQUITY
S 1988
EQUITY
MOTION TO STAY PROCEEDINGS
PURSUANT TO Pa.R.C.P. ~213.1
AND NOW, comes Barbara McK. Mumma, and Lisa M. Morgan, Co-
executrices of the Estate of Robert M. Mumma, Deceased ("Estate"),
by their counsel Goldberg, Katzman & Shipman, P. c., who
respectfully move the court as follows:
1. This motion is directed to the case in this court at No.
3210 S 1988, instituted by the Estate, and praying, inter alia, for
the court to appoint a custodian for Lebanon Rock, Inc.
2. As this court is well aware, over three years of
proceedings have occurred with respect to this issue, involving
hundreds of pages of testimony, numerous conferences with the
court, preparation of opinions by the Court, appeals to the
Superior Court, a decision of that court vacating prior decrees and
remanding for additional proceedings, the scheduling of additional
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proceedings by the Court's order of October 18, 1991, hearings that
were subsequently held on December 11 and 12, 1991, and additional
hearings that have been scheduled throughout the_first three months
of 1992.
3. Robert M. Mumma, II (RMMII) , (in conjunction with Gary M.
Gilbert), subsequent to this court's order of October 18, 1991,
filed a Petition with the Court of Common Pleas of Cumberland
County, Orphans' Court Division, requesting appointment of a
temporary fiduciary with respect to the 50% stock ownership of the
Estate in Lebanon Rock, Inc., which estate is being administered in
Cumberland County. A copy of said Petition and the Rule entered
thereon by the Cumberland County Court fixing a hearing for January
17, 1992, is attached hereto as Exhibit "A".
4. As said Petition clearly indicates, the issues raised are
similar to those that have been before this court for several
years, are presently pending decision by this court, and in one
case, had already been decided by this Court through its order of
October 18, 1991, a copy of which is attached hereto as Exhibit
"B".
5. The said Petition, as set forth in paragraph 17, seeks to
force the Estate to sell its interest in the stock of Lebanon Rock,
Inc., which is the same request heretofore asserted by RMMII before
this Court without success.
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1388
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6. Pa.R.C.P. g213.1, a copy of which is attached hereto and
marked Exhibit "C", grants the power to this Court, as the one in
which a complaint was first filed, to order coordination of the
instant action and the Petition filed in Cumberland County and
attached hereto as Exhibit "A".
7. Allowing the Petition in Cumberland County to proceed
would create duplication of effort and waste of judicial resources
by requiring litigation in two forums of a matter which could be
and has been fully addressed in this forum.
8. Prior to adoption of the said Pa.R.C.P. g213.1, the case
law in this Commonwealth recognized the need to avoid unnecessary
duplication in circumstances similar to those present in this case:
Norristown Automobile Co.. Inc. vs. Hand, 386 Pa. Super. 269, 562
A.2d 902, 904 (1989); Davis Cookie Company. Inc. vs. Wasley, 389
Pa. Super. 112, 566 A.2d 870 (1989); Klein vs. city of
Philadelphia, 77 Pa. Commw. ct. 251, 465 A.2d 730 (1983).
9. Pursuant to Pa.R.C.P. g213.1(b), this Court may
temporarily stay the proceedings in Cumberland County while this
Motion is being considered: 2 Goodrich AmRam, 2d g213.1(b):1,
p.238-239.
10. The Court's decision in the instant cases appointing a
custodian for Lebanon Rock, Inc., would resolve the issues raised
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in the Petition filed in Cumberland county, Exhibit "A" hereof.
11. RMMII and Gary M. Cilbert have unduly_ delayed the filing
of the Petition in Cumberland County, and RMMII has actively joined
in with the litigation in Dauphin County, and has thereby waived
his right to have the Cumberland county Court consider whether it
should entertain his Petition.
12. RMMII's Petition represents an attempt at forum shopping
related to the perception that this Court is intending to deal with
the questions involving Lebanon Rock, Inc. in a manner which is
contrary to his wishes.
13. The prior order of this court, at the request of RMMII,
consolidated the case at No. 3210 S 1988, involving the operation
of Lebanon Rock, Inc., and the question of appointment of a
custodian for said corporation, with the other three cases, and it
would be ill-advised to divide off for disposition by another
court, some of the issues which have previously been found to be
interrelated.
WHEREFORE, the Estate prays that this court issue an order
immediately staying temporarily any action with respect to the
Petition For The Appointment of A Temporary Fiduciary filed with
the Cumberland county Court on or about October 28, 1991, and
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further, to issue an order staying said action until final
determination of the matters before it in the within cases.
Respectfully Submitted,
GOLDBERG, KATZMAN & SHIPMAN, P. c.
By:
e~Af~/~~
Ronald M. Katz. ,Esq.
320E Market Street
strawberry Square
P. O. Box 1268
Harrisburg, PA 17108
(717) 234-4161
5
1391
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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
NO. 21-86-398
ORPHANS' COURT DIVISION
RULE TO SHOW CAUSE
AND NOW, this o'~ tL day of
It..,.,,i'-'...--
, 1991,
upon consideration of the annexed PETITION FOR THE APPOINTMENT OF
A TEMPORARY FIDUCIARY, it is hereby decreed that citations be
awarded, directed to Barbara McK. Mumma and Lisa M. Morgan,
Executrices under the will of Robert M. Mumma, to show cause, if
any there be, why the appointment of a temporary fiduciary should
not be granted with regard to the administration of the above-
referenced estate's interest in the Pennsylvania corporation
known as Lebanon Rock, Inc.
The time and place of hearing are fixed for I.. 30
o'clock e.m. /7ti. ~^O &l
on the day of , 199)', in
(J
Courtroom No. 1, Carlisle Courthouse, Cumberland County,
Pennsylvania.
This citation is returnable sec. leg.
TI,::
A TRUE COpy FROM RECORD
In Te::~~n:on1' \o"!K;rJC'f, ! hereuilto set m}' hand
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Cumbai',C:;ij Ct..:~i~~Y
BY THE COURT:
/S/
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P.J.
1.392
IN RE:
ESTATE OF ROBERT M.
MUMMA, late of
cumberland County,
Pennsylvania
.
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IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
.
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NO. 21-86-398
ORPHANS' COURT DIVISION
DECREE
AND NOW, this
day of
, 1991,
at o'clock, .m., upon hearing of the PETITION FOR THE
APPOINTMENT OF A TEMPORARY FIDUCIARY, the evidence presented
thereupon, and the legal arguments with regard thereto, IT IS
HEREBY ORDERED AND DECREED THAT
and
shall be appointed temporary fiduciaries of
the above-referenced estate's interest in the Pennsylvania
corporation known as Lebanon Rock, Inc. This appointment shall
remain in effect until further order of this Court and, while
acting hereunder, the aforesaid temporary fiduciaries shall be
vested with all powers, discretions, rights and entitlements that
the current executrices of the above-referenced estate have held
with respect to such interest.
BY THE COURT:
P.J.
1393
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IN REI ESTATE OF I IN THE COURT OF COMMON
ROBERT M. MUMMA , . PLEAS OF CUMBERLAND
.
Late of Cumberland . COUNTY, PENNSYLVANIA
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County, pennsylvania .
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No. 21-86-398
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: ORPHANS' COURT DIVISION
PETITION FOR THE APPOINTMENT OF
A TEMPORARY FIDUCIARY PURSUANT TO
Ct~PTER 43 OF THE PROBATE, ESTATES AND
FIDUCIARIES CODE 120 Fa. C.S.A. ~ 4301 et seq.l
Robert M. Mumma, II, individually, and Robert M.
Mumma, II and Gary M. Gilbert, Co-Guardians of the Estates of
Susan Mann Mumma and Marguerite Mann Mumma, by their attorneys,
Charles E. Shields, III of Mechanicsburg, and William C.
costopoulos, of Lemoyne, file the following Petition for the
Appointment of a Temporary Fiduciary:
1. Robert M. Mumma, II is an adult individual
currently residing in Bowmansdale, York County (Box 58),
pennsylvania, and he is a beneficiary under the will of his
father, Robert M. Mumma, the Decedent herein.
2. Robert M. Mumma, II and Gary M. Gilbert are the
court-appointed guardians of the Estates of Susan Mann Mumma and
Marguerite Mann Mumma pursuant to the Order of the Honorable
John T. Miller, of the Court of Common Pleas of York County,
Pennsylvania, Orphans' Court Division, dated October 4, 1991.
The said Susan Mann Mumma and Marguerite Mann Mumma are holders
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of shifting executory dHvises under the duly probated will of
their grandfather, Robert M. Mumma, and are also interested
parties in the administration of his estate.
3. Robert M. Mumma, the Decedent herein, died testate
on April 12, 1986, a resident of Cumberland County, Pennsylvania.
4. The said Robert M. Mumma's will, dated May 19,
1982, and the codicil thereto, dated October 12, 1984, were duly
probated by the Register of wills for Cumberland County,
Pennsylvania, and letters testamentary thereon were granted to
Barbara McK. Mumma and Lisa M. Morgan, the executrices named
therein.
5. At the time of the Decedent's death, he owned a
fifty percent (50%) interest in a Pennsylvania corporation known
as Lebanon Rock, Inc. ("Lebanon Rock"). This ownership interest
was represented by 5,000 shares of common stock of such
corporation, and it was valued for federal and state death tax
purposes by the executrices of the Decedent's estate at
$50,000.00. The remaining 5,000 shares of common stock of the
said corporation are owned by Robert M. Mumma, II, one of your
Petitioners herein.
6. In addition to his ownership interest in Lebanon
Rock, the Decedent also owned at the time of his death 700 shares
of the outstanding common stock of a Pennsylvania corporation
known as Pennsylvania supply Company. By reason of such shares,
the Decedent held a 98.31461% ownership interest in Pennsylvania
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Supply Company, which ownership interest was valued for federal
and state death tax purposes by the executrices of the Decedent's
estate at $9,144,473.00. The remaining shares of such
corporation were owned, in equal portions, by the Decedent's four
children, Linda M. Roth, Barbara M. McClure, Lisa M. Morgan (one
of the executrices of the Decedent's estate), and Robert M.
Mumma, II, a Petitioner herein. Attached hereto, made a part
hereof and marked as Exhibit "A" is a chart which depicts the
ownership structure of the Decedent's family enterprises at the
time of his death.
7. Pennsylvania supply Company was essentially the
holding corporation for a number of subsidiary corporations and,
in order to take advantage of certain favorable tax provisions
which were due to expire at the end of 1986, this corporation,
and one of its subsidiary corporations, was liquidated by the
executrices of the Decedent's estate. The executrices have
represented in their First and Partial Account filed herein that
such liquidation occurred on December 19, 1986. By reason of
such liquidation, the Decedent's estate received, in addition to
various other assets, 709.4238 shares of the outstanding common
stock of a Pennsylvania corporation known as Nine Ninety-Nine,
Inc. ("Nine Ninety-Nine"), as well as 900.0761 shares of the 10\
preferred stock of such corporation. These shares represented
33.511\ of the outs~anding cornman stock of Nine Ninety-Nine and
81.825\ of the outstanding 10\ preferred stock of such
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corporation. The remaining common and 10\ preferred shares of
Nine Ninety-Nine were held as follows:
Shareholder
Common
10% Preferred
Barbara McK. Mumma
Lisa M. Morgan
Barbara M. McClure
Linda M. Roth
Robert M. Mumma II
.500n
16.472%
16.472%
16.472%
16.572%
1. 22119%
4.23556\
4.23556\
4.23556\
4.24703%
8. since the receipt of the aforementioned common and
preferred stock, the executrices of the Decedent's estate have
transferred the same to themselves, in their capacities as
trustees of the marital trust created under Article Seven of the
Decedent's will. Following this transfer, Barbara McK. Mumma and
Lisa M. Morgan have used a substantial portion of the aforesaid
shares to fund a withdrawal right granted under the Decedent's
will to Barbara McK. Mumma. As set forth in the First and
Partial Account filed by Barbara McK. Mumma and Lisa M. Morgan as
Trustees of the Marital Trust, Barbara McK. Mumma has received,
pursuant to her withdrawal right, 195.842 shares of common stock
of Nine Ninety-Nine, and 118.268 shares of its 10\ preferred
stock. In addition, the trustees have paid to Barbara McK.
Mumma, in her capacity as the income beneficiary of the marital
trust, income distributions consisting of 55.58368 shares of
common stock of Nine Ninety-Nine and 70.8421 shares of its 10%
preferred stock. By reason of these afuresaid distributions,
Barbara McK. Mumma has received from the Decedent's marital trust
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251.6788 shares of common stock of Nine Ninety-Nine and 189.1101
shares of its 10% preferred stock.
9. Following the aforesaid distributions from the
Decedent's marital trust, the ownership structure of Nine Ninety-
Nine is now as follows:
Shareholder
Common
10% Preferred
Barbara McK. Mumma and
Lisa M. Morgan, Trustees
Barbara MeR. Mumma,
Individually
Lisa M. Morgan,
Individually
Barbara M. McClure
Linda M. Roth
Robert M. Mumma II
21. 62234%
64.63327%
12.3886%
18.41302%
16.472%
4.23556%
16.472%
16.472%
16.572%
4.23556%
4.23556%
4.24703\
Accordingly, Barbara McK. Mumma and Lisa M. Morgan now own in
their individual names 28.8606% of the common stock of Nine
Ninety-Nine, and they vote as Trustees 21.62234% thereof, giving
them more than 50% control of said Corporation.
10. The Petitioners herein have filed objections to the
distribution of the aforesaid shares to Barbara MeR. Mumma, which
objections are based, in part, upon your Petitioners' belief that
Barbara MeR. Mumma and Lisa M. Morgan intend to use Mrs. Mumma's
withdrawal right over the Marital Trust to gain control over the
Decedent's family enterprises in contravention of the Decedent's
testamentary intent. Your Petitioners further believe that
Barbara MeR. Mumma ultimately intends to either transfer such
shares by will or gift to her daughter, Lisa M. Morgan, so that
-5-
1.397
, .
her daughter will eventually own a majority interest in such
family enterprises, or Barbara MeR. Mumma intends to exercise her
controlling vote in order to cause the family business interests
to be sold to third parties, further in contravention of
decedent's testamentary intent.
11. As indicated by the attached Exhibit "An, Nine
Ninety-Nine is the sole owner of a Pennsylvania corporation known
as pennsy Supply, Inc., which in turn is the sole owner of a
sUbsidiary corporation known as Elco Concrete Products, Inc.
During the past three years Elco Concrete Products, Inc. ("Elco
Concrete") has been involved in extensive litigation with Lebanon
Rock which, as noted heretofore, is a corporation owned equally
by the Estate of Robert M. Mumma and your Petitioner, Robert M.
Mumma, II. Given, as indicated above, the present ownership of
Elco concrete's parent corporation (Nine Ninety-Nine), the
litigation represents a suit by one corporation (Elco Concrete)
controlled by Barbara McK. Mumma and Lisa M. Morgan, both
individually and as fiduciaries, and another corporation (Lebanon
Rock) owned equally by the Decedent's estate and Robert M. Mumma,
II.
12. The litigation between the aforesaid corporations
is embodied in four separate actions in Dauphin County,
Pennsylvania, and recently was the subject of litigation before
the Pennsylvanid Superior Court. Among the principal issues
involved in such litigation is the right of Elco Concrete to mine
-6-
1398
,'.
dolomite in a quarry owned by Lebanon Rock under terms and
conditions economically adverse to Lebanon Rock.
13. Barbara McK. Mumma and Lisa M. Morgan, although
executrices of the Decedent's estate, have consistently exercised
their controlling interest in Elco in a manner designed to
enhance its profits and value, while undermining the
profitability of Lebanon Rock. This action constitutes a breach
of their fiduciary duty to preserve and protect the value of the
assets of the estate. The executrices have taken such action
(i) because of their deep-seated personal animosity against
Robert M. Mumma, II and the challenges he has raised whenever the
executrices have failed to administer the Decedent's estate in
accordance with the Decedent's testamentary intent, and {ii} in
order to enhance their own individual financial interests in Elco
Concrete even though such interests are directly in conflict with
their fiduciary duties to Lebanon Rock as executrices of the
Decedent's estate. Such financial interests include, but are not
limited to, the 28.860\ individual stock interest of Barbara McK.
Mumma and Lisa M. Morgan in the parent corporation of Elco
Concrete, and also the substantial salaries and other benefits
that they have voted to themselves as officers and directors of
Elco Concrete, Nine Ninety-Nine and its affiliated corporations.
14. Lisa M. Morgan and Barbara McK. Mumma, in their
capacities as executrices of the Estate of Robert M. Mumma, have
further exercised estate's ownership interest in Lebanon Rock so
-7-
1399
..
. .
as to create a deadlock with regard to the management and
operation of such corporation, thereby fostering their plan to
undermine the value of this estate asset. This plan of the
executrices, which is a matter of public record in the Dauphin
County and superior Court actions, has been, in sum, to seek the
award of favorable mining rights to Elco Concrete of mineral
deposits owned by and located on land of Lebanon Rock, all to the
detriment and exclusion of Lebanon Rock. The executrices have
also resisted all attempts by your Petitioner, Robert M. Mumma,
II, to acquire the estate's interest in Lebanon Rock and thereby
resolve the current deadlock, even though the acquisition price
offered by your Petitioner is substantially in excess of the
estate's carrying value for such stock.
15. The great lengths to which Lisa M. Morgan and
Barbara McK. Mumma will go to undermine the profitability of
Lebanon Rock and to create a deadlock with regard to its
management and operation is evidenced by the petition they filed
in the Court of Common Pleas of Dauphin County on October 1,
1991, requesting that Lebanon Rock be prohibited from mining
dolomite in its own quarry and selling it to third parties.
Lisa M. Morgan and Barbara McK. Mumma, as
executrices of the Estate, which owns 50% of Lebanon Rock, have
refused to attend any Board of Directors' meetings for Lebanon
Rock or to engage in any dialogue as to whether such mining
activity is likely to be profitable for Lebanon Rock and its
-8-
1.400
"
shareholders, and yet they maintain in their petition that the
mining and selling of dolomite by Lebanon Rock would jeopardize
the continuing viability of Lebanon Rock. On the contrary, the
mining and selling of dolomite by Lebanon Rock has been shown to
be very profitable for Lebanon Rock, and if the executrices would
have attended any Directors' meeting, they would have clearly
seen that to be the case. Instead, however, Lisa M. Morgan and
Barbara McK. Mumma have deadlocked the management and operation
of Lebanon Rock by refusing to attend Board of Directors'
meetings and have sought to undermine the profitability of
Lebanon Rock by filing a petition to prohibit Lebanon Rock from
engaging in a very profitable business venture.
This has been done not out of any concern for the
profitability of Lebanon Rock, as the executrices maintain in
their petition of October 1, but rather to advance the interests
of Elco Concrete, which claims the right to mine dolomite in the
quarry owned by Lebanon Rock. The Superior Court has ruled that
no evidence has heen shown of the existence of such a right, and
has remanded the case to the trial court for hearings on that
issue. The advancement of Elco Concrete's interests at the
expense of those of Lebanon Rock represents a conflict of
interest for Lisa M. Morgan and Barbara McK. Mumma as executrices
of the Estate.
16. section 4301 of the Probate, Estates and
Fiduciaries Code empowers the Orphans' Court Division of the
-9-
:1401
_._._~----~~.._--_._~--------- ----- -.------------------ -------
---,------ ., - -.----.------ - ---.-
,'.
Court ot Common Plaas to appoint a temporary fiduciary whenever
the existing fiduciary is "in a position of conflicting interest
or in any situation where his functioning as a fiduciary for a
temporary period may not be in the best interests of the estate."
Given the present litigation between Elco Concrete and Lebanon
Rock, the fact that Lisa M. Morgan and Barbara McK. Mumma, as
fiduciaries, hold substantial ownership interests in both
litigants is a clear case of conflicting interests. Furthermore,
the conflict is all the more egregious in the present instance
since Lisa M. Morgan and Barbara McK. Mumma have used their
fiduciary interest in Lebanon Rock to undermine such corporation
and to enhance their own 28.8606\ individual interest in Elco
Concrete.
17. In accordance with the provisions of Chapter 43 of
the Pennsylvania Probate, Estates and Fiduciaries Code, your
Petitioners respectfully request that, during the pendency of the
litigation between Elco Concrete and Lebanon Rock, a temporary
fiduciary be appointed in place of Barbara McK. Mumma and Lisa M.
Morgan with respect to the 5,000 shares of Lebanon Rock held by
the Decedent's estate. This temporary fiduciary should be vested
with the same fiduciary powers that Barbara McK. Mumma and
Lisa M. Morgan now hold with respect to such stock, including the
power to sell the same at a price that is fair to the estate and
that reflects the current fair market value of such stock.
-10-
1402
c.
.
18. Your Petitioners respectfully re~Jest that
Barbara M. McClure and Dauphin Deposit Bank and Trust Company,
the substitute fiduciaries under the Decedent's will, be
appointed as the temporary fiduciaries of the Decedent's interest
in Lebanon Rock. In the event that such parties are unwilling to
serve, your Petitioners request this Honorable Court to appoint
such persons or corporations as this Court may deem appropriate.
WHEREFORE, your Petitioners respectfully request this
Honorable Court to issue a citation against Lisa M. Morgan and
Barbara McK. Mumma, the executrices of the Estate of Robert M.
Mumma, to show cause why, in accordance with Chapter 43 of the
Probate, Estates and Fiduciaries Code, temporary fiduciaries
should not be appointed in their place with regard to the
administration of the Decedent's interest in Lebanon Rock.
Respectfully submitted,
&f.~tJL
Charles E. Shields, III
Commonwealth National
Bank Building
2 West Main street
Mechanicsburg, PA 17055
(717) 766-0209
1.0. 138513
William C. Costopou1os
831 Market Street
Lernoyne, PA 17043
(717) 761-2121
Attorneys for petitioner,
Robert M. Mum~a. II
-11-
1403
__._~.u._._ _ __.__ _
,.
IN RE:
ESTATE OF ROBERT M.
MUMMA, late of
CUmberland County,
Pennsylvania
IN THE COURT OF COMMON
: PLEAS OF CUMBERLAND
: COUNTY, PENNSYLVANIA
NO. 21-86-398
ORPHANS' COURT DIVISION
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
I
, ...... h -
~-{:;'~' 1,1
55.
Before me, the undersigned authority, personally
appeared ROBERT M. MUMMA. II, who, being first duly sworn
according to law, deposes and says that all of the averments set
forth in the foregoing Petition are true and correct according to
the best of his knowledge or as he is informed and believes.
~,
Robert M. Mumma, II
Sworn to and subscribed
befor~ me .this ~K~ day
of -' ~W;"'.~ , 1991.
. , . :1' t"
'. I l' , _,
A wv':'.~J'c.' ._c.. I "1' p.,
, Not\,ry Publ c . j
~ IOTARIAL SEA"
KIMBEr.:'. ^ CROSTLEY. t."":' ""Ill;c
City 01 J-l.arrisourg. Oauohrn Co.
M.... Commissi.n Exoires Jan. 4. 1993
1.404
._------~----~--~.-._--- -
~ '
IN RE:
ESTATE OF ROBERT M.
MUMMA, late of
cumberland County,
Pennsylvania
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
.
.
NO. 21-86-398
ORPHANS' COURT DIVISION
.
.
AFFIDAVIT
COUNTY OF
. ' ,
I, \..\ ~
' . t. .' "
)
) 55.
)
COMMONWEALTH OF PENNSYLVANIA
Before me, the undersigned authority, personally
appeared ROBERT M. MUMMA, II, and CARY ~~BERTr-Co-Guardians
of the Estates of Susan Mann Mumma and Marguerite Mann Mumma,
who, being first duly sworn according to law, depose and say that
all of the averments set forth in the foregoing Petition are true
and correct according to the best of their knowledge or as they
are informed and believe.
~..
xxxxxxxxxxxxxxxxxxxxxxxxx
fUj{r-lIaXY4~~~~U~
Sworn to and subscribed
before me this -ft'" day
of t~('o~'T I , 1991.
J"", "i
.... ,'1 tf'
I" ; ,,; :". f: : { ~ I':! ,;: II
Notary PUblic \
, .
'~OT ARIAL SEAt'
KIMBE,'C:" ;.. CROSTlEY, r:",,", "blle
Cty ot HarnsbUt9. OaUOhln Co.
M,! Commission E.oires Jan. 4. ~993
1.405
y';
,',
IN RE:
ESTATE OF ROBERT M.
MUMMA, late of
CUmberland County,
Pennsylvania
.
.
IN THE COURT OF COMMON
PLEAS OF CUMBERLAND
COUNTY, PENNSYLVANIA
NO. 21-86-398
ORPHANS' COURT DIVISION
:
:
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA
( /6RK..
COUNTY OF
)
) 55.
)
Before me, the undersigned authority, personally
appeared GARY M. GILBERT, Co-Guardian of the Estates of Susan
Mann Mumma and Marguerite Mann Mumma, who, being first duly sworn
according to law, depose and say that all of the averments set
forth in the foregoing Petition are true and correct according to
the best of his knowledge or as he is informed and believes.
~~ vt. <?if. Glx. 9-
G Y M.\ Gilbert, Guardian
(
'JOT !lRIIIL SEIIL ,
LOfU A. ;:-;:':(,Gr:.~5. NotJry PubUC
r~'1 d Y J.ll. YOr'lil: CXJnty
Mv~~~~~~~~~~~~~1~
1406
'.
CERTIFICATE OF SERVICE
I, Charles E. Shield; III, certify that a copy of the
attached PETITION FOR THE APPOINTMENT OF A TEMPORARY FIDUCIARY
was served by first class mail on
following:
upon the
Richard W. Stevenson, Esquire
McNees, Wallace & Nurick
P.O. Box 1166
Harrisburg, PA 17108-1166, for
Barbara M. MCClure
129 S. Lewisberry Road
Mechanicsburg, PA 17055
Thomas M. Kittredge, Esquire
Morgan, Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103-6993, for
Barbara McK. Mumma and
Lisa M. Morgan
John Hardin Young, Esquire
Porter, Wright, Morris' Arthur
1233 20th Street, N.W.
Washington, D.C. 20036-2395, for
Linda M. Roth
5104 wessling Lane
Bethesda, MD 20814
William F. Martson, Esquire
Martson, Deardorff, williams' Otto
10 East High Street
Carlisle, PA 17013, for
8arbara McK. Mumma and
Lisa M. Morgan
Attorney General
COmmonwealth of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
(Courtesy Copy)
Robert M. Frey, Esquire
5 South Hanover Street
Carlisle, PA 17013
Charles E. Shields, III
1407
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1408
'OCT ~ 1 )~~l
IN RE: LITIGATION INVOLVING
ELCO CONCRETE PRODUCTS, INC.,
LEBANON ROCK, INC.,
I<OBERT M. NUrv!r~iA; II.
LISA N. NORGAN,
BARBARA McK. MUMMA,
THE ESTATE OF ROBERT M.
MUMMA, et al
IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
NO. 4678 EQUITY
NO. 4722 EQUITY
NO. 3210 S 1988
NO. 4744 EQUITY
ORDER
AND NOW, this 18th day of October, 1991, we direct that Elco
Concrete Products, Inc. shall continue to have access to the quarry
for the mining of dolomite in accordance with the provisions of
our September 7, 1990 order and we direct that Lebanon Rock, Inc.,
pending further order of this Court, not mine dolomite for sale
to third persons.
On Friday, November 29, 1991 at 9:00 A.M. we
will hear evidence in support of the contending positions of the
adversaries on the corporate management of Lebanon Rock, Inc.
Specificaly, we will address the issues of deadlock in the
management of Lebanon Rock, Inc. and the statutory means to deal
with that corporate situation as provided in the Associations
Code, Title 15, Pa.C.S.A.
Additionally, we will hear evidence
on the issue of whether Robert M. Mumma II is the president of
Lebanon Rock, Inc. and whether Robert M. Mumma II should be removed
as a director of that corporation.
We direct that counsel for
the parties submit to us memorandums of law, no later than November
15, 1991, setting forth the provisions of the Associations Code
which counsel deem appropriate for uS to consider, the relief
that they think the Court should grant, if any, and the testimony
that supports their position that already appears of record,
1409
&Jz ,6i I (IE J/
(counsel shall
as well as an
refer us to the appropriate transcript and page),
outline of the testimony proposed to be presented
on November 29, 1991 on these issuc~.
The
Court
will
hear
evidence, during
on December 30,
two days of hearings,
1991 and continuing on
commencing at 9: 00
December 31, 1991,
1. Whether
A.M.
on
the following
issues:
a
contract
was
formed
between Elco Concrete
Products, Inc. and Lebanon Rock, Inc. pertinent to the current
operations in the quarry as well as those anticipated or desired
by the parties, extending into 1992.
2. Whether Elco has mined outside the pit limit.
3. Whether or not Elco should be permitted to mine, in the
future, outside the pit limit.
4. Whether Lebanon Rock, Inc. is entitled to damages for
Elco's quarrying inside and outside the pit limit.
The Court will hear evidence, in two days of hearings,
commencing at 9:00 A.M., January 23. 1992, and continuing through
January 24, 1992, on the following issues:
1. Whether Lebanon Rock is entitled to damages resulting
from the bank account opened by an employee of Elco.
2. Whether Lebanon Rock is entitled to damages for improper
actions undertaken by the directors and employees of Elco.
3. Whether damages are appropriate by virtue of the alleged
breach of agreement to guarantee the line of credit.
4. "The 30 acre dispute."
9,
The parties shall
1992 memorandums of
submit to the Court on or before January
law setting forth the factual data which
1410
they believe supports
transcripts and page
for their position.
their position, (with reference to
existing
references) and appropriate legal
These memorandums shall include
authority
suggested
specific findings of fact and conclusions of law.
The Court will hear evidence, during two days of hearings,
commencing at 9:00 A.M. on February 24, 1992 and continuing through
February 25, 1992, on the following issues:
1. Whether the mining operations violated the Pennsylvania
Noncoal Surface Mining Conservation and Reclamation Act.
2. Whether Robert M. Mumma II is liable to Elco for damages
resulting from self-dealing.
3. Whether Richard B. Wickersham,
disqualified as counsel for Lebanon Rock,
4. Whether Lebanon Rock, Inc. was
cases Nos. 4678 and 4722.
5. The proposed sale of Lebanon Rock, Inc.
6. Whether or not Lebanon Rock Inc. is entitled to counsel
Esq. should
Inc.
have been
a proper party
to equity
fees.
The parties shall submit to the Court on or before February
14, 1992 memorandums of law setting forth the factual data which
they believe supports their position, (with reference to existing
transcripts and page references) and appropriate legal authority
for their position. These memorandums shall include suggested
specific findings of fact and conclusions of law.
Herbert A. Schaffn r, Judge
:1411
"
Distribution:
William
Lemoyne,
C. Costopou1os,
PA 17043
Esq. ,
P.O.
Box
222,
831
Market
Street,
Ronald M. Katzman, Esq" P.O. Box 1268. Harrisbu'rg. PA 17101
Jon A.
Square,
Baughman. Esq., Pepper, Hamilton & Scheetz. 3000
18th and Arch Streets, Philadelphia, PA 19103-2799
Logan
John Witherow, Esq., 10 South Market S'1uare. P.O. Box 1181.
Harrisburg, PA 17108
1412
BUSINESS OF COURTS
r
Subdivision (b) provides the court before which a motion
is pending with the necessary authority to stay all actions
which eventuaUy may be subject to the order of coordina.
tion.
Subdivision (e) sets forth the criteria to be considered by
the court in determining whether to enter an order of
coordination. Several of the criteria specified by subdivi-
sion (b) are similar to the criteria for certification of a
class action under Rule 1708. The similarity is not sur-
prising since the two provisions have the identical func-
tion, as expressed by Rule 1708, of determining whether
the particular procedural device is "a fair and efficient
method of adjudicating the controversy,"
Subdivision (d) is concemed with the order of coordina-
tion. The court is authorized. to stay proceedings in any
action subject to the order, transfer an action to another
court or "make any other appropriate order." Under
subdivision (b) the court is empowered to stay actions
which are the subject of the motion for coordination pend-
ing the detennination of the motion. Subdivision (d) au-
thorizes the court to further stay actions once the decision
to coordinate has been made.
Subdivision (d)(2) governs the transfer of actions. This
type of transfer is new to Pennsylvania practice. It hilS
long been the praclicti that un action muy be trunlifcrrcd
only under Rule lOO6(d) by the court in which the action is
pending to another court for the convenience of the parties
and witnesses or in order to obtain a fair and impartial
trial. In subdivision (d)(2), the court is reaching out to and
taking control of actions pending not only in the forum
county but in other counties of the Commonwealth as well.
The power of the court under Rule 213.1 is litatewide.
Subdivision (d)(2) mentions transfer to the "court or
courts in which any of the actions is pending." This
language implies that the order of coordination need not
necessarily provide for only one coordinated action. Rath-
er, it bppruprlaw, lhere lIIight be more lhan 0110 cuurdilllit..
ed action. Actions which are ready for trial might be the
subject of one coordinated action while recently com-
menced actions might be the subject of a second coordinat-
ed action. Regionalization of certain litigation might be
beneficial to the courts and parties under certain circum-
stances. However, the propriety of such procedures
would depend on numerous facton, including the risk of
inconsistent and duplicative orders. These coordination
alternatives are only illustrative of the imaginative proce-
dures available under the rule.
Subdivision (dX3) provides an opportunity for creative
judicial management. Unlike Section 1407 of the Judicial
Code of the United States, 28 U.S,C.A. f 1407, which
provides for the transfer of actions Hfor coordinated or
consolidated pretrial proceedings", the purposes for which
actions may be coordinated are not specified in Rule 213.1.
The court may "make any other appropriate order." For
instance, actions may be consolidated generally, for pre-
trial proceedings, for determination of specified issues of
law or fact or for trial. The order is limited only by its
function of providing a fair and efficient method of adjudi-
cating the controversy.
Subdivision (e) concerns notice of the order. The court
wiJl Ipecify the manner of &inn&, notice to all partie. in all
&etlon. .ubject to the order. A c.rtitled copy of the ord.r
is to be sent to the courts in which the actions to be
21
h
,f
.
's
s
.
'.
e
'.
:s
,-
it
it
y,
d
ic
,-
'y
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..
'e
on
.e
Ie
1.
0-
Ie
,e
'0
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on
in
is
Ie
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s-
e.
,.
m
s-
m
er
er
In
,e
,e
be
be
!".
re
nt
,d-
1413
Rule 213.1
coordinated are pending so that they might "take such
action as may be appropriate to carry out the coordination
order."
In providing a framework rather than detailed proce.-
dures, the rule applies to both complex and'simpler litiga-
tion which crosses county lines. One court will be able to
take charge of multiple class actions commenced in several
counties. One court will be able to oversee litigation
arising from two petitions to open a judgment, one petition
filed in the county in which the judgment was entered and
the other in the county to which it was transferred.
RULE 213.1 COORDINATION OF
ACTIONS IN DIFFERENT
COUNTIES
(a) In actions pending in different counties which
involve a common question of law or fact or which
arise from the same transaction or occurrence, any
party, with notice to all other parties, may file a
motion requesting the court in which a complaint
was first filed to order coordination of the actiona.
Any party may file an answer to the motion and the
court may hold a hearing.
(b) The court in which the complaint was first
filed may stay the proceedings in any action which
is the subject of the motion.
(c) In determining whether to order coordination
and which location is appropriate for the coordinat-
ed proceedings, the court shall consider, among
other matters:
(1) whether the common question of fact or law is
predominating and significant to the litigation;
(2) the convenience of the parties, witnesses and
counsel;
(3) whether coordination will result in unreason-
able delay or expense to a party or otherwise preju-
dice a party in an action which would be subject to
coordination;
(4) the efficient utilization of judicial facilities and
personnel and the just and efficient conduct of the
actionsj
(5) the disadvantages of duplicative and inconsist-
ent rulings, orders or judgmenta;
(6) the likelihood of settlement of the actions
without further litigation should coordination be
denied.
(d) If the court orders that actions shall be coor-
dinateo it may
(1) stay any or all of the proceedings in any
action subject to the order, or
(2) transfer any or all further proceedings in the
actions to the court or courts in which any of the
action. i. pendini', or
(3) make any other appropriate order.
EJz;6; I
~c
",
i
1-
'.
RULES OF CIV~L PROCEDURE
Rule 213.1
(e) In the order of coordination, the court shall
include the manner of giving notice of the order to
all parties in all actions subject thereto and direct
that specified parties pay the costs, if any, of coordi-
nation. The court shall also order that a certified
copy of the order of coordination be sent to the
courts in which the actions subject to the order are
pending, whereupon those courts shall take such
action as may be appropriate to carry out the coordi-
nation order.
to The final order disposing of a coordinated
action or proceeding shall be certified and sent to
the court in which the action was originally com-
menced to be filed of record.
Adopted April 4, 1990, effective July I, 1990.
[See Explanatory Comment-1990 following
Rule 213]
RULE 214. PREFERENCES ON
TRIAL LISTS
Preference shall be given in the preparation of
trial lists to:
(a) Cases in which the Commonwealth is the real
party in interest;
(b) Suits against defaulting officers of the Com-
monwealth or any political subdivision thereof or
the sureties of such officers:
(c) Actions of quo warranto or mandamus in-
volving public officers;
(d) Cases in which a new trial has been granted,
a judgment of nonsuit removed (excepting a nonsuit
entered for fallure of appearance) or a venire facias
de novo awarded, by either the court of original or
appellate jurisdiction;
(e) Suits to recover wages due for manual labor;
to Cases arising under the laws of this Common-
wealth to determine the competency of any person
alleged to be weak-minded, insane or an habitual
drunkard;
(g) Such other cases as the court upon cause
shown may designate.
Nole
The Committee does not recommend that any relative
preferences be accorded inter .e to cases in the various
cluses entitled to priority under thjs Rule, other than the
chronological order In which they are placed on the trial
lists.
Adopted SepL 8, 1988, effective March 20, 1989. Amended
March 11, 1991, effective July I, 1991.
[See Explanatory Comment-I99! followln. Rule 235]
22
141,1
RULE 215. ASSIGNING AND SETTING
ASIDE PREFERENCES ON TRIAL LIST
No case shall be assigned a preference on any
trial list unless the right to preference is brought to
the attention of the officer in charge of the Hst by
praecipe, order or otherwise; and any party in inter-
est may, at least ten days before the case is called
for trial, make application to set aside such prefer-
ence as may have been assigned.
Adopted Sept. 8, 1938, effective March 20, 1939. Amended
March 11, 1991, effective July 1, 1991.
[See Explanatory Comment-1991 following Rule 235]
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RULE 215.1 [RESCINDED]
Note
The subject matter of former Rule 215.1 governing the
duty of common pleae courts in Commonwealth Court jury
trial cases is now governed by Rute 3735 of the Pennsylva-
nia Rules of Appellate Procedure, adopted November 6,
1975 and effective July I, 1976.
Rescinded effective Sept. 22, 1976.
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RULE 216. GROUNDS FOR
CONTINUANCE
(A) The following are grounds for continuance:
(1) Agreement of all parties or their attorneys, if
approved by the Court;
(2) lIlness of counsel of record, a material wit-
ness, or a party. If requested a certificate of a
physician shall be furnished, stating that such ill-
ness will probably be of sufficient duration to pre-
vent the ill person from participating in the trial;
(3) Inability to subpoena or to take testimony by
deposition, commission, or letters rogatory, of any
material witness, shown by affidavit which shall
state:
(a) The facts to which the witness would testify
if present or if his deposition should be taken;
(b) The grounds for believing that the absent
witness would so testify or give his deposition;
(c) The efforts made to procure the attendance
or deposition of such absent witness; and
(d) The reasons for believing that the witness
will attend the trial at a subsequent date, or that
his deposition can and will be obtained:
(4) Such special ground as may be allowed in the
discretion of the court.
(B) Except for cause shown in special cases, no
reason above enumerated for the continuance of a
case shall be of effect beyond one application made
in behalf of one party or group of parties having
similar interests.
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V E R I FIe A T ION
I, Ronald M. Katzman, Esq., counsel for Barbara McK. Mumma,
and Lisa M. Morgan, Executrices of the Estate of Robert M. Mumma,
deceased, having full and complete knowledge of the facts set forth
herein, hereby verify that the statements made in this MOTION TO
STAY PROCEEDINGS are true and correct to the best of my
information, knowledge and belief. I understand that false
statements herein are made subject to the penalties of 18 Pa. C.S.
4904, relating to unsworn falsification to authorities.
Date: January 6, 1992
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RONALD M. KATZMAN, \ESQ.
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CERTIFICATE OF SERVICE
I hereby certifiy that I am this day serving a true and
correct copy of the foregoing document upon the persons and in the
manner indicated below:
service by first class mail addressed as follows:
william C. Costopoulos, Esq. (717-761-2121)
Kollas, Costopoulos, Foster & Fields
831 Market street
Lemoyne, PA 17043
Jon A. Baughman, Esq. (215-981-4000)
Pepper, Hamilton & Scheetz
300 Two Logan Square
Eighteenth and Arch Streets
Philadelphia, PA 19103
John A. Witherow, Jr., Esq. (717-255-1155)
Pepper, Hamilton & Scheetz
Suite 400, 10 South Market Square
P. O. Box 1181
Harrisburg, PA 17108
Charles E. Shields, Esq.
National Bank Building
2 West Main Street
Mechanicsburg, PA 17055
Thomas M. Kittredge, Esq.
Morgan Lewis & Bockius
2000 One Logan Square
Philadelphia, PA 19103
DATED: January 6, 1992
RON/ib:w Ki:~f;iEi6.
GOLDBERG, KATZMAN & SHIPMAN, P. C.
120E Market Street
P. O. Box 1268
Harrisburg, PA 17108
Attorney Registration No. 07198
1416
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IN RE: LITIGATION INVOLVING
IN THE COURT OF COMMON PLEAS
DAUPHIN COUNTY, PENNSYLVANIA
ELCO CONCRETE PRODUCTS, INC.,
LEBANON ROCK, INC.,
ROBERT M. MUMNA; U,
LISA M. MORGAN,
BARBARA McK. MUMMA,
THE ESTATE OF ROBERT M.
MUMMA, et al
NO. 4678 EQUITY
NO. 4722 EQUITY
NO. 3210 S 1988
NO. 4744 EQUITY
ORDER
AND NOW, this 18th day of October, 1991, we direct that Elco
Concrete Products, Inc. shall continue to have access to the quarry
for the mining of dolomite in accordance with the provisions of
our September 7, 1990 order and we direct that Lebanon Rock, Inc.,
pending further order of this Court, not mine dolomite for sale
to third persons.
On Friday, November 29, 1991 at 9:00 A.M. we
will hear evidence in support of the contending positions of the
adversaries on the corporate management of Lebanon Rock, Inc.
Specificaly, we will address the issues of deadlock in the
management of Lebanon Rock, Inc. and the statutory means to deal
with that corporate situation as provided in the Associations
Code, Title 15, Pa.C.S.A.
Additionally, we will hear evidence
on the issue of whether Robert M. Mumma II is the president of
Lebanon Rock, Inc. and whether Robert M. Mumma II should be removed
as a director of that corporation.
We direct that counsel for
the parties submit to us memorandums of law, no later than November
15, 1991, setting forth the provisions of the Associations Code
which counsel deem appropriate for us to consider, the relief
that they think the Court should grant, if any, and the testimony
that supports their position that already appears of record,
1417
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COURr OF COMMON PLEAS
TWELFTH JUDICIAL DISTRICT
DAUPHIN COUNTY, PENNSYLVANIA
HERBERT A. SCHAFFNER
JUDGE
December 26, 1991
COURT HOUSE
HARRISBURG 1 71 01
Jon A. Baughman, Esq.
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103-2799
Ronald M. Katzman, Esq.
320E Market Street
Strawberry Square
P.O. Box 1268
Harrisburg, PA 17108-1268
Re: Elco Concrete - Lebanon Rock - Mumma Litigation
Nos. 4678, 4722 and 4744 Equity and 3210 S 1988
Gentlemen:
As you know, we had hearings in the above captioned litigation
scheduled for December 30th and December 31st, 1991. At the
request of Mr. Baughman, and with the acquiescence of Mr. Katzman,
the Court continued those hearings. You know as well that we
have further hearings scheduled for January and February, 1992.
It appears to the Court that the scheduled dates will not be
sufficient to receive the evidence and hear the arguments counsel
desire to make on the remaining issues. We have examined our
calendar and suggest four additional days of hearing, which should
be sufficient, and we suggest March 26, 27, 30 and 31, 1992. Please
advise the Court of the acceptability of these dates.
With regard to the matters scheduled for December 11th and
12th, the following: we will finish the matters that were scheduled
for December 11th and 12th on January 23, 1992. Then, on January
24, 1992, we will begin to receive evidence pertinent to the issues
identified in paragraphs I, 2, 3 and 4, the first such numbered
paragraphs, in our order of October 18, 1991. We direct that
counsel for the parties submit to us memorandums of law, no later
than January 13, 1992, setting forth the relief they think the
Court should grant on the matters for the January 24th hearing
date. At the conclusion of the two days of hearing in January,
we will, with counsel, identify the issues next sequentially to
be dealt with and will establish an appropriate briefing schedule.
In view of what the Court has suggested above, I do not
believe it will be necessary to meet with counsel on December
30, 1991, as we had suggested as a possdbility at the conclusion
of our hearings two wee~ago'r
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