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HomeMy WebLinkAbout11-30-93 ~JMMA;Opposition to Coordinate:11/30 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 BARBARA MeK. MUMMA, et al. CIVIL Ac'nON Plaintiffs, : NO. 66 EQUITY 1988 v. ROBERT M. MUMMA, II, et al. OPPOSITION AND ANSWER OF ROBERT K. KUMMA, II TO RULE TO SHOW CAUSE AND KOTION OF BARBARA Kelt. MUMMA AND LISA K. MORGAN TO COORDINATE CIVIL ACTION NO. 666 EQUITY NOVEMBER TERM 1993, PHILADELPHIA COUNTY WITH THE ABOVE-CAPTION PROCEEDINGS NOW COMES, Robert M. Mumma, II, by and through his attorneys Buchanan Ingersoll Professional Corporation, and files the within opposition and Answer to Rule to Show Cause and Motion of Barbara McK. Mumma and Lisa M. Morgan (hereinafter lithe Movants") to Coordinate civil Action No. 666 Equity, November Term 1993, Philadelphia County with the above-captioned proceedings on the following grounds: A. It is both improper and in direct violation of the plain language of Pa.R.Civ.p. 213.1 for Movants to ask this Court L MUHMA;Opposition to Coordinate:ll/30 to order the recently filed civil Action No. 666 Equity, November Term 1993 (lithe Philadelphia County Action") to be coordinated with the above-captioned proceedings because civil Action No. 66 Equity 1988 ("Equity 66") is no longer pending or active before this court, nor are there are any other active or presently pending proceedings relating to the the Nine Ninety-Nine, Inc. ("999") Plan of Division under orphans' Court Division Docket No, 21-86-398. Pa.R.Civ.P. 213.1 expressly contemplates coordination of two or more active cases presently pending in different counties for purposes of discovery and/or trial. since there are no active cases in the Court of Common Pleas of Cumberland County, orphans Court Division, with regard to the 999 Plan of Division there is nothing to coordinate the Philadelphia County Action with and the instant Motion to Coordinate must be denied as a matter of law. B. In the absence of Pa.R.Civ. 213.1, this Court lacks jurisdiction to order the transfer of the Philadelphia County Action to Cumberland County. Any preliminary objection to dismiss the Philadelphia County action for lack of proper venue and/or motion to transfer for the convenience of the parties and witnesses must be filed and adjudicated in Philadelphia County. Notwithstanding the allegations and intimations contained in the present Motion, the Movants have been formally served with the -2- MUHHA:Opposition to Coordinate:11/30 Complaint and have failed to raise any of these defenses in Philadelphia County. C. The Philadelphia county Action relates solely to Pennsylvania corporate law as prescribed by the relevant provisions of the Pennsylvania Business Corporation Law (lithe BCL"). Specifically, the Philadelphia County Action challenges the legality of the provisions contained in the 999 Plan of Division that purportedly require Robert M. Mumma, II ("RMMII") to execute a proposed Consent and Joinder and deliver it t.o David Landrey, Esquire of the law firm of Stradley, Ronon, stevens and Young, in Philadelphia, as attorney-in-fact for D-E Distribution Corporation ("D-E"), on or before a date certain or otherwise face a total forfeiture of his entire equity and monetary interest in the corporation formerly known as 999. In sum, the Movants as controlling officers and directors of Defendant D-E have unlawfully attempted to coerce RMMII, as a condition precedent to his receipt of a declared dividend that has already been paid to all of the other shareholders of record, into executing the proposed Consent and Joinder and assuming potential personal liability in excess of $500,000. These actions and the proposed Consent and Joinder directly contradict and violate fundamental Pennsylvania corporate law. contrary to the Movants' misplaced assertions, the Philadelphia county Action does not -3- MUMHA:Opposition to Coordinate:11/30 challenge the consummated sale to CRR plc ("CRR") nor does it relate to the Estate of Robert M. Mumma (lithe Estate") and/or the acts and omissions of the Executrices with respect thereto. consequently, the Orphans Court Division should not transfer venue of a corporate law case legally filed in Philadelphia county solely because of its jurisdiction over the Estate. Indeed, neither the Estate nor the Executrices in their capacity as Executrices are named as parties in the Philadelphia County Action. D. The terms of the 999 Plan of Division at issue in the Philadelphia County Action require RMMII to execute and hand- deliver the proposed Consent and Joinder to David Landrey, Esquire, in Philadelphia as agent for Defendant D-E, the successor in interest to 999. Defendant D-E and its controlling officers and directors are the sole defendants in the Philadelphia County action. Consequently, venue for the Philadelphia County Action is clearly appropriate in Philadelphia County and the Movants cannot now complain about litigating the Philadelphia County Action in a place in which they themselves have created proper venue through the drafting of the terms of the 999 Plan of Division and their appointment of David Landrey, Esquire, as agent for the successor corporation known as D-E. -4- MUMMA~Opposition to Coordinate: 11/30 E. The orphans Court Division of the Court of Common Pleas of Cumberland county has no special or inherent interest in adjudicating complicated and technical matters related solely to application of Pennsylvania corporate law and/or the BCL. Conversely, the jurisdiction of the Orphans' Court is expressly limited to Estate matters which are outside of the realm of the Philadelphia County Action. Moreover, as the Court well knows, the litigation between the instant parties has had a long history with other cases instituted and currently pending in York and Dauphin counties. If the Movants' present erroneous analysis were to be followed to its logical end, all of these cases - many of them having nothing to do with the Estate - would be susceptible to transfer to the Orphans Court Division of this Court pursuant to Pa.R.Civ.p. 213.1 simply because several of the parties to those other cases also serve as Executrices of the Estate.. F. Finally, it well-settled as a matter of Pennsylvania law that a plaintiff should be given great deference in selecting venue for the filing of a lawsuit. As long as venue is appropriate as a matter of law and is not prejudicial to the litigants, a plaintiff'S choice of venue should not be disturbed. These well-established principles of law apply in this case and should not be abrogated for all of the reasons stated herein. -5- ~:Opposition to Coordinate:11/30 RESPONSES 1. Admitted in part and denied in part. Admitted that Barbara MeR. Mumma ("Mrs. Mumma") and Lisa M. Morgan ("Lisa") are Executrices of the Estate and are also trustees of the Marital Trust created under the will of Robert M. Mumma, Deceased ("the Marital Trust"). Denied that the Philadelphia County Action concerns or relates to the Estate, the Movants in their capacity as Executrices of the Estate and/or the Marital Trust. By way of further answer, the Philadelphia County Action concerns only questions of Pennsylvania corporate law and is beyond the scope of the interests of the Orphans Court Division of the Court of Common Pleas of Cumberland County. 2. Admitted in part and denied in part. Admitted that Mrs. Mumma is the widow and Lisa M. Morgan ("Lisa"), Linda M. Roth ("Linda"), Barbara M. McClure. .("Barbara") and RMMII are the children of the late.Robert M. Mumma. Denied that these allegations have any relevance to the issues presented in the Philadelphia County Action and/or that Barbara is a party in the Philadelphia County Action. 3. Admitted in part and denied in part. Admitted that Mrs. Mumma, Lisa, the Marital Trust, Linda, Barbara and RMMII are -6- MUMMk:Opposition to Coordinate:11/30 the shareholders of the corporation formerly known as 999. All other allegations contained within Paragraph 3. are denied as conclusions of law to which no responsive factual averments are required. By way of further answer, RMMII, by virtue of his Shareholder status in the corporation formerly known as 999, is also a shareholder of and/or holds an equity interest in D-E. 4.-5. Denied as stated. All of the allegations contained in Paragraphs 4. and 5. are denied as conclusions of law to which no responsive factual averments are required. The Plan of Division and the sale to CRR were consummated through certain legal documents all of which speak for themselves. 6. Admitted in part and denied in part. The factual averments are admitted. Denied that these factual averments have any relevance to the Philadelphia county Action which does not challenge the consummated sale to CRR and/or the terms of the 999 Plan of Division, except those limited portions which illegally prohibit payment of the declared dividend to RMMII. 7. Admitted in part and denied in part. Admitted that RMMII filed the philadelphia County Action on November 3, 1993. Denied that Movants have not been served. To the contrary, the Movants' co-counsel, Morgan, Lewis & Bockius, were served on -7- MUMMA':Opposition to Coordinate:11/30 November 3, 1993 and the Movants and Defendant D-E were formally served on November 22, 1993. Moreover, to avoid a preliminary injunction hearing before the Court of Common pleas of Philadelphia County on November 5, 1993, the Movants agreed to e~tend the then scheduled forfeiture date of November 5, 1993. This agreement between the parties, as amended, remains in effect to date. 8. Denied as stated. The complaint is a legal document that speaks for itself. By way of further answer, the Complaint principally seeks a declaratory judgment ordering Defendant D-E to pay the declared dividend to RMMII without requiring RMMII to execute the unlawful proposed Consent and Joinder as a condition precedent. Simply stated, Defendant O-E, as successor in interest to 999, cannot declare and pay a dividend to all record shareholders as of a certain date, and then refuse to pay the declared dividend to RMMII as a qualified shareholder. Moreover, to withhold the payment of the dividend on the basis of a Plan of Division and sale that do not require such a consent and that have been fully consummated is totally improper and illegal. 9. Admitted in part and denied in part. Admitted that other litigation relating to the sale of the Mumma family -8- HUMMA:Opposition to Coordinate:l1/30 business and the 999 Plan of Division has been brought in this Court. These actions were all directly related to the Estate. The remaining allegations are denied as stated. Denied that any such litigation is presently pending. By way of further answer there is no case presently pending before this Court that concerns the corporate legality of the Defendants' refusal to pay the declared dividend to RMMII. 10. Admitted in part and denied in part. Admitted that Equity 66 was a declaratory judgment action filed by Mrs. Mumma and Linda M. Roth. All other allegations are denied as stated. Denied that Equity 66 is presently pending before this Court or that it should be considered as being filed first for the purposes of fulfilling the requirements of Pa.R.Civ.p. 213.1. Denied that there are any related proceedings presently pending before the Court with regard to Docket No. 21-86-398 and/or that Docket No. 21-86-398 should be considered as a "first filing" for purposes of Pa.R.Civ.p. 213.1. 11. Admitted in part and denied in part. Admitted that this Court has heard trial testimony and rendered opi.nions and findings of fact with respect to prior matters concerning the Estate and the Mumma family. Denied that such allegations have -9- MUMHA:Opposition to Coordinate:11/30 any direct relation to the issues raised in the Philadelphia County Action. 12. (a.)-(c.) Denied as stated. The pleadings filed in Bquity 66 and No. 21-86-398 are legal documents that speak for themselves. Plaintiff denies the Movants' instant characterizations of the those pleadings. By way of further answer, Plaintiff avers that the proceedings described in Paragraph 12. are no longer pending before this Court and are therefore irrelevant to the present Motion to coordinate the Philadelphia County Action. 13. Admitted in part and denied in part. Admitted that Paragraph 13. correctly recites certain portions of Pa.R.Civ.p. 213.1. Denied that these portions of Pa. R.civ.p. 213.1 are applicable as a matter of fact or law to the present Motion to Coordinate the Philadelphia County Action for all of the reasons stated herein. 14. Denied. The averments contained in Paragraph 14. are denied as conclusions of law to which no responsive factual averments are required. To the extent that such allegations can be also construed as averments of fact, they are expressly denied for all of the reasons stated herein. -10- MUMMA:Opposition to Coordinate:11/30 15. Denied. The averments contained in Paragraph 15. are denied as conclusions of law. a. Admitted in part and denied in part. Admitted that Mrs. Mumma resides in Cumberland County and that co-counsel for Mrs. Mumma and Lisa are located in Cumberland County. All other averments are denied as stated. By way of further answer and contrary to Movants' present averments, Lisa has previously testified before this Court that she resides in Boca Raton, Florida. Neither Barbara McClure and/or Robert Frey, Esquire are parties to the Philadelphia County Action, nor does the Philadelphia county Action directly concern them. Moreover, the Philadelphia County Action is a corporate law action that does not concern or relate to the Estate, the Executrices in their capacity thereof and/or the Marital Trust. The Complaint clearly establishes venue in Philadelphia county through, inter alia, the fact that the designated agent for D-E with respect to the proposed Consent and Joinder and the Plan of Division, David Landrey, Esquire, is located in Philadelphia and the Plan of Division requires Bob to execute and deliver the proposed unlawful Consent and Joinder to Mr. Landrey in Philadelphia. Plaintiff lacks knowledge or information sufficient to form a belief as to the averments concerning the status of the Stage I and stage II sales transactions. The remaining averments are -11- HUMHA:Opposition to Coordinate:ll/30 denied as conclusions of law to which no responsive factual averments are required. b.- d. Denied as stated. The allegations contained in subsections b. through d. constitute conclusions of law to which no responsive factual averments are required. To the extent they can be construed as averments of fact, these allegations are expressly denied and the instant motion to coordinate should be denied for all of the reasons stated herein. ~6. Denied. As stated previously, there are several actions presently pending in York and Dauphin county between these litigants with respect to the Mumma family businesses. At least one of these actions was initiated by Mrs. Mumma and Lisa in courts outside of Cumberland county. Moreover, by drafting the 999 Plan of Division and designating David I,andrey as agent for the successor corporation D-E with respect to the proposed Consent and Joinder at issue, the Movants have themselves created venue in Philadelphia county. As a matter of law, a Plaintiff's right to select the venue for an action should be given great deference and only disturbed in extreme circumstances. Here, it is the Movants who are clearly engaging in forum shopping and attempting to circumvent the Pennsylvania Rules of civil Procedure by unlawfully attempting to transfer the Philadelphia -~2- MUMMA:Opposition to Coordinate:11/30 county Action to Cumberland county through coordination with cases that are no longer active and/or pending before this Court" 17. Denied. The averments contained in Paragraph 17. constitute conclusions of law to which no responsive factual averments are required. By way of further answer, this Court lacks jurisdiction to grant the requested motion to coordinate and the motion to coordinate should be denied for all of the reasons stated herein. WHEREFORE, Robert M. Mumma, II, having fully responded to the Rule to Show Cause and the instant Motion, hereby requests that the present motion to transfer and coordinate the Philadelphia County Action to Court of Common Pleas of Cumberland county, Orphans Court Division, be denied. BUCHANAN INGERSOLL PROFESSIONAL CORPORATION By: L15 November 30, 1993. Gerald K. Morrison Attorney 1.0. No. 06876 Christopher F. Farrell Attorney 1.0. No. 23538 John B. Consevage Attorney 1.0. No. 36593 30 N. Third Street, 8th Floor P.O. Box 12023 Harrisburg, PA 17108-2023 (717) 237-4854 -13- MUHHA:Opposition to Coordinate:11/29 VERIFICATION I verify that the statements made in the foregoing document are true and correct to the best of my knowledge, information 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. ~-~~1r, Robert M. Mumma, II Dated: November 29 , 1993. -14- MUMHA:Oppositlon to Coordinate:11/JO CERTIFICATE OF SERVICE I, Nancy A. starner do hereby certify that on November 30 , 1993, I served copies of the foregoing OPPOSITION AND ANSWER OF ROBERT M. MUMMA, II TO RULE TO SHOW CAUSE AND MOTION OF BARBARA McK. MUMMA AND I,ISA M. MORGAN TO COORDINATE CIVIL ACTION NO. 666 EQUITY NOVEMBER TERM 1993, PHILADELPHIA COUNTY WITH THE ABOVE-CAPTIONED PROCEEDINGS by depositing said copies in the first-class mail, at Harrisburg, Pennsylvania, addressed to the following: John Harding Young, Esquire Porter, Wright, Morris & Arthur 1233 20th street, N.W. Washington, DC 20036-2395 Charles E. Shields, III, Esquire Commonwealth National Bank Bldg. 2 West Main Street Mechanicsburg, PA 17055 Marc J. Sonnenfeld, Esquire Morgan, Lewis & Bockius 2000 One Logan Square Philadelphia, PA 19103-6993 Richard W. Stevenson, Esquire McNees, Wallace & Nurick P.O. Box 1166 Harrisburg, PA 17108-1166 William C. Costopolos, Esquire costopoulos, Foster & Fields 831 Market Street Lemoyne, PA 17043 Ivo V. otto, III, Esquire Martson, Deardorff, Williams & otto Ten East High street Carlisle, PA 17013 BUCHANAN INGERSOLL PROFESSIONAL CORPORATION By ~~~.~.