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HomeMy WebLinkAbout06-28-01 F IFILES\DA T AFl LEIGendoc Cl1r\5844~an5 dispel Created: 06/27101085216AM Revised; Cl6l27/01 0407~54 PM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE ESTATE OF ROBERT M. MUMMA, Orphans' Court Division Deceased. NO. 21-86-398 ANSWER AND NEW MATTER OF BARBARA McK. MUMMA AND LISA M. MORGAN TO PETITION OF ROBERT M. MUMMA, II TO OBTAIN DOCUMENTS AND INFORMATION Respondents Barbara McK. Mumma ("Mrs. Mumma") and Lisa M. Morgan ("Mrs. Morgan") respond as follows to the allegations in the petition of Robert M. Mumma, II ("Mr. Mumma, II") to obtain documents and information: I. Denied. It is denied that Mrs. Mumma or Mrs. Morgan themselves, or through their counsel, have recently produced documents in discovery. In any event, Mrs. Mumma and Mrs. Morgan are unable to discern what documents are being referenced by this allegation. With regard to "misappropriation of shares," the allegations of this paragraph are so lacking in specificity as to be unintelligible and not susceptible of a meaningful response. To the extent that a response is required, it is denied that Mrs. Mumma or Mrs. Morgan has misappropriated shares of stock. 2. Denied. On the contrary, to the extent they have been located, Mrs. Mumma and Mrs. Morgan have made available original corporate minute and stock books that have been requested. 3. Denied. The allegations of this paragraph constitute legal conclusions to which no response is required and are, therefore, denied. To the extent that a response is required, it is denied that any aspect of the establishment or funding oftrusts under the will of Robert M. Mumma, Sr. (the "Trusts") has violated the provisions ofthe will. It is further denied that 80% of the assets in the Estate of Robert M. Mumma, Sr. have been "distributed to the Executrix." 4. Denied. The allegations of this paragraph are so lacking in specificity that they are not susceptible of a meaningful response. In particular, the lawsuits to which the allegations refer are not identified with any specificity. To the extent that a further response is required, it is admitted that Mrs. Mumma and/or Mrs. Morgan have filed lawsuits naming as defendants individuals who are shareholders of one or more ofthe corporations listed in the petition. It is denied that the purpose of those lawsuits is improperly to deprive any individual of any lawful interest they hold in any corporation. WHEREFORE, Mrs. Mumma and Mrs. Morgan respectfully request that the Court deny the petition. New Matter 5. Mr. Mumma, II does not allege any standing to pursue or basis for entitlement to the relief requested. 6. Mrs. Mumma and Mrs. Morgan have filed two sets of interim accounts with respect to the Estate and the Trusts, providing beneficiaries with all required information regarding the Estate and the Trusts. There are no objections pending before the Court as to at least the second set of interim accounts. 7. Notwithstanding the filing of accounts, and the fact that the Estate and the Trusts are before the Court, Mr. Mumma, II persists in attempts to obtain what can only be called discovery, without citing any rule of procedure permitting him to do so. S. There is nothing presently pending before the Court in this proceeding which would permit Mr. Mumma, II to obtain the information he now requests, to the extent it has not already been provided. 9. The Estate remains open, in no small part, because of the ongoing war oflitigation waged by Mr. Mumma, II, which has consumed the time and resources of Mrs. Mumma and Mrs. Morgan for more than a decade. 10. There is no relationship among the caption, allegations and prayer for relief in the petition, so that no relief may be granted. 11. The questions raised and relief sought regarding the administration of the Estate of Robert M. Mumma, the funding of certain Trusts created under his will, and the handling of Estate- 2 and/or trust-owned assets is premature and appropriately is the subject of the accounting process currently underway with respect to the Estate. 12. Me Mumma, II's grievances against Mrs. Mumma and Mrs. Morgan with respect to the handling of the Estate, the Trusts and the family-owned businesses are or have been the subject of numerous petitions and motions in this matter, as weB as dozens of other lawsuits. See, e.g., Robert M. Mumma, 11 v. Bobali Corp., et a!., No. 5683 Equity 2000 (CP. Dauphin); Robert M. Mumma,l1v. CRH,Inc., et al., No, 99-1546 (CP. Cumberland); Robert M. Mumma.IIv. Mumma Realty 1, et aI., No. 99-5569 (C,P. Cumberland); Robert M. Mumma, IIv. Mumma Realty 1. et aI., No, 99-811 (CP. Perry); Robert M. Mumma, 11 v, Mumma Realty 1, et al., No. 3932 S 1999 (CP. Dauphin); Robert M. Mumma, II v. G-A-T Distribution Corp., No. 423 Civil 1994 (C.P. Cumberland); Robert M. Mumma, II, et al. v. D-E Distribution Corp., No. 666 Equity, Nov. Term 1993 (C.P. Philadelphia); Robert M. Mumma, 11 v. Mumma Realty Associates, et aI., No. 91-12 Equity (C.P. Perry); Robert M. Mumma, 11 v. Mumma Realty Associates, et a!., No. 5007 Equity (CP. Dauphin); Robert M. Mumma, IIv. Barbara McK. Mumma, et al., No. 84 Equity 1990 (CP. Cumberland); Robert M. Mumma, 11 al. v. Nine Ninety-Nine, Inc., et aI., No. 15 Equity 1990 (CP. Cumberland); Robert M. Mumma, II al. v. Nine Ninety-Nine, Inc., et aI., No. 14 Equity 1990 (CP. Cumberland); Robert M. Mumma, 11v. Elco Concrete Products, Inc., No. 4744 Equity 1988 (CP. Dauphin). 13. Me Mumma, II also has filed lawsuits against, inter alia: the longtime accountants for the family-owned businesses, Robert M. Mumma.IIv. George W. Hadley, Jr., etal., No. 96-SU- 03601-07 (C.P . York), and Robert M. Mumma, II v. Lucker, Kennedy & Felmeden, et aI., No. 91-SU- 01900-01 (CP. York); counsel for the Estate, Robert M. Mumma, II v. Arthur 1. Klein, et aI., No. 44301990 (CP. Cumberland); Me Mumma, Sr.'s bank, Robert M. Mumma, 11 v. Dauphin Deposit Bank & Trust Co., No. 4753-S 1993 (CP. Cumberland); and the purchaser of the family-owned businesses, Robert M. Mumma, 11 v. Pennsy Supply, Inc., No. 99-2765 (C.P. Cumberland). He also filed complaints with the Office of Disciplinary Counsel against Mrs. Morgan and a lawyer for the Estate, and sought to persuade the District Attorney of Dauphin County to investigate Mrs. Mumma's actions in managing family-owned properties. 3 14. In this proceeding, Mr. Mumma, II has made numerous other attempts to block or interfere with actions taken by Mrs. Mumma and Mrs. Morgan as executrices and trustees. See, e.g., Opinion and Order In Re Preliminary Objections to Petition for Declaratory Judgment (Mar. 8, 1989) (Sheely, P.J.) (rejecting contention that will of Mr. Mumma, Sr. prevented sale of family-owned businesses to non-family members), appeal discontinued, No. 206HBG89 (Pa. Super. May 17, 1989); Opinion and Order In Re Petition to Appoint a Temporary Fiduciary (Mar. 6, 1992) (Sheely, PJ.), exceptions denied, Opinion and Order In Re Exceptions to Order of Court Denying Petition to Appoint a Temporary Fiduciary at 6-7 (Nov. 5, 1992) (Sheely, P.J. and Hoffer, J.); Opinion and Order In Re Request for Preliminary Injunction (Aug. 4, 1993) (Sheely, PJ.) (denying request to enjoin sale of family-owned businesses), aff'd, 437 Pa. Super. 672, 649 A.2d 467 (1994), reconsid. denied, No. 614HBG93, Order (Sept. 26, 1994); Order of Court In Re Request for Preliminary Injunction (Dec. 11, 1993) (Hoffer, J.) (denying request to enjoin exercise of option by purchaser of family-owned businesses). In January 1989, Mr. Mumma, II filed a petition to remove Mrs. Mumma and Mrs. Morgan as executrices and trustees. However, a hearing on the petition scheduled for April 3, 1989, was continued at Mr. Mumma, II's request, and in March 1991, Mr. Mumma, II asked that the Court "defer and postpone action" on his petition. 15. The filing of the instant petition is simply the latest in a long line of attempts by Mr. Mumma, II to interfere in the administration of the Estate and the Trusts. Opinion and Order In Re Petition to Appoint a Temporary Fiduciary at 8 ("if anyone is hampering [the administration of the Estate] or endangering the estate, it is [Mr. Mumma, II]"); Opinion and Order In Re Exceptions to Order of Court Denying Petition to Appoint a Temporary Fiduciary at 6-7 ("[i]t is evident that if anyone is acting in detrimental fashion in regard to the [E]state, it is [Mr. Mumma, II]. He.. . [has attempted] to illustrate a conflict between the executrices and the estate, but has only managed to show a conflict between himself and the estate"). 16. Despite his protestations that the allegations in the instant petition are based upon "documents recently provided through discovery," they are, in fact, nothing more than reformulations of allegations made repeatedly by Mr. Mumma, II in the foregoing and other litigation. 4 17. In addition, Mr. Mumma, II has been provided with thousands of pages of documents, both informally and through discovery in litigation, relating to the businesses and properties owned by the Mumma family, as well as the actions of Mrs. Mumma and Mrs. Morgan and the assets controlled by the Estate and the Trusts. These documents have been provided by, inter alia: the family-owned businesses; the former counsel to, one ofthe primary banks for, and the longtime accounts for the family-owned businesses; the Pennsylvania Departments of State, Revenue and Transportation; two firms retained by Mrs. Mumma and Mrs. Morgan to advise them in exercising oftheir fiduciary duties; the buyerofthe family-owned businesses in 1993 and its counsel; numerous other third parties; and Mrs. Mumma and Mrs. Morgan themselves. 18. Mr. Mumma, II's course of conduct in litigation and in this proceeding have been extraordinarily costly to the Estate and the Trusts, to the detriment to all of the beneficiaries. 19. Mr. Mumma, II's petition and the allegations therein are interposed for an improper purpose and constitute harassment and an improper attempt to hinder and interfere with the administration of the Estate, the Trusts and the family-owned businesses and properties. Mr. Mumma, II's litigation conduct has amply illustrated the Superior Court's observation that his "past conduct evidences that he will exceed all bounds to force a favorable result." Lebanon Rock, Inc. v. Elco Concrete Prods., Inc., Nos. 331HBG90, 332HBG90, 333HBG90, 334 HBG90, 335HBG90, 372HBG90, 373HBG90 & 637HBG90, Memorandum at 11 n.4, 414Pa. Super. 659, 598 A.2d 1338 (1991). The Superior Court went on to note in its opinion that [t]he lower court record in this case discloses excessive acrimony and petty litigiousness on the part of certain parties to this litigation. This conduct, alone, may be so egregious as to warrant an award of attorneys' fees regardless of whether the underlying claims have merit. See generally Chambers v. Nasca, Inc., 59 U.S.L. W. 4595 (U.S. June 6, 1991) (sanctions upheld against litigant for tactics of delay, oppression, harassment and massive expenditure in effort to compel opposing parties into exhausted compliance). Id. at 11 n.3; see also Gemini Equip. Co. v. Pennsy Supply, Inc., No. 3205 S 1988, Opinion at 1 (C.P. Dauphin April 26, 1990) ("Presently before the Court is a son [Mr. Mumma, II] suing his mother over his deceased father's car. One would hope the tragedy of death would pull surviving family 5 members together in their grief. All too often, however, greed and hatred run rampant."), aff'd, 407 Pa. Super. 404, 595 A.2d 1211 (1991). 20. Even aside from the foregoing, the relief requested in the petition is neither appropriate as a general matter nor in any way justified by the factual allegations made. 21. The allegations in the petition are subject to time-bar based upon laches and/or applicable statutes of limitations. 22. Mr. Mumma, II's allegations also are foreclosed by res judicata and/or collateral estoppel based upon the numerous prior court rulings on the matters he raises. 23. Mr. Mumma, II fails to plead any adequate basis for the "injunctive" relief he apparently seeks. WHEREFORE, Mrs. Mumma and Mrs. Morgan request that the petition be stricken, and that the Estate of Robert M. Mumma be awarded attorneys' fees incurred in responding to the petition. MARTS ON DEARDORFF WILLIAMS & OTTO By -r L __ w: .D..1L -=-.. Thomas 1. Wi ia s, Esquire Ten East High treet Carlisle, PA 17013-3093 (717) 243-3341 Additional counsel: Joseph A. O'Connor, Jr., Esquire Marc J. Sonnenfeld, Esquire Brady L. Green, Esquire MORGAN, LEWIS & BOCKIUS LLP 1701 Market Street Philadelphia, PA 19103-2921 (215) 963-5212,5572,5079 Attorneys for Attorneys for Respondents Barbara McK. Mumma and Lisa M. Morgan Date: June 27, 2001 6 VERIFICATION I verify that I am counsel for Barbara McK. Mumma and Lisa M. Morgan in this and other litigation, and that Mrs. Mumma and Mrs. Morgan are outside the jurisdiction such that their verifications cannot be obtained within the time allowed for filing the answer. I further verify that the statements made in the answer 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. S 4904 relating to unsworn falsifications to authorities. CERTIFICATE OF SERVICE I, Tricia D. Eckenroad, an authorized agent for Martson Deardorff Williams & Otto, hereby certify that a copy of the foregoing Answer and New Matter was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Mr. Robert M. Mumma, III Box E Bowmansdale, P A 17008 MARTS ON DEARDORFF WILLIAMS & OTTO ~ fJ~~ Trici . Eckenroad Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: ~ UfI{. Z 7, l.P<'I 7