Loading...
HomeMy WebLinkAbout09-07-05 IN THE COURT OF COMMON PLEAS OF CUMBERBLAND COUNTY, PENNSYL VANIA IN RE ESTATE OF ROBERT M. MUMMA, ORPHAN'S COURT DIVISION Deceased. No: 21-86-398 RESPONSES OF BARBARA MCK. MUMMA AND LISA M. MORGAN TO OBJECTOR'S DISCOVERY REQUESTS IN THE FORM OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS TO THE EXECUTRIXESffRUSTEES Barbara McK. Mumma and Lisa M. Morgan~ as executrices and trustees under the will of Robert M. Mumma (the "Will") respond as follows to the interrogatories and requests for production of documents served upon them by Robert M. Mumm~ II ("Mr. r--> Mumm~ II"): ,'-) ~:~ , I : -) Preliminary Statement Mr. Mumm~ II's overall position on discovery~ as stated in his April4~ 2005:-' letter to counsel for Mrs. Mumma and Mrs. Morgan~ is that he is "absolutely entitled to everything in the Estate and trusts~" including "all books~ records~ memoranda~ legal opinions, legal research~ files~ and all other documents relating to the Estate~ thetrusts~ and any entities owned or controlled by the Estate or trusts." For reasons set forth previously and below in their General Objections~ Mrs. Mumma and Mrs. Morgan dispute that Mr. Mumm~ II has an such an "absolute entitlement." In response to the Court's May 19~ 2005 order directing that he serve discovery requests in connection with his objections to the accounts for the Estate and the Trusts~ Mr. Mumm~ II has not served any new~ specific discovery requests. Rather, he has served a confusing compilation of prior discovery requests and motions. This makes a coherent response difficult. Mrs. Mumma and Mrs. Morgan have responded to all prior requests. Moreover, as the documents served by Mr. Mumma. II with his discovery requests demonstrate, there already have been extensive proceedings regarding all or most of Mr. Mumma. II's prior requests. Indeed, one of the documents attached by Mr. Mumma. III was the subject of an evidentiary hearing in May 1992 before President 1 Petition of Robert M. Mumma, II, Son of Decedent and Beneficiary Under Decedent's Will, to Compel Compliance with RequestlDemand that Certain Documents Either be Delivered Up for Robert M. Mumma, II~s Perusal and Possible Copying or that They be Made Available at a Convenient Place and Time for Robert M. Mumma, II's Perusal and Possible Copying. The copy of this document attached to Mr. Mumma, II's latest discovery request does not appear to include the actual document request. . //1' i j , -J I -.J -':J - ~ feil C-) ('J :.~r-J i=:J . "1 '-::J , " C-, i__i ~.~~ ',' ,:;"5 i'n ;, ') .=:> .':c'C1 -r'"] ,.) G) ! I Judge Sheely. No documents were ordered produced at that time; Mr. Mumma, II's counsel essentially retreated from the request when Judge Sheely stated that "I can certainly see that there. . . is competition from [Mr. Mumma, II's] businesses. . ."~ Mr. Mumma, II previously had denied, when seeking confidential business information from the Estate and/or the Trusts, that he operated businesses in competition with the family- owned interests. Mr. Mumma, II's latest discovery request suggests that Mrs. Mumma and Mrs. Morgan have not provided him with information that he has, in fact, been given. This includes, for instance, the complete federal estate tax return, with all schedules and amendments, and related correspondence. Some of the prior requests which he attaches ! predate by years the submission by Mrs. Mumma and Mrs. Morgan of various interim and final accounts for the Estate and the Trusts, all of which have been provided to Mr. I I Mumma, II. They also predate the sale of the Pennsy Supply Businesses in 1993, and the I significant production of information to Mr. Mumma, II at the time of and following the I closing of that transaction and the related litigation. Finally, Mr. Mumma, II's request I does not reflect that significant documentation that Mr. Mumma, II has been provided in I discovery in various litigations, including the Orphans' Court proceedings, and I informally. A listing of documents produced by Mrs. Mumma, Mrs. Morgan and by I counsel and the accounts to the family-owned businesses and interests is attached as i Schedule 1. It is true that Mr. Mumma, II has asked for documents and information at various times; it is also true that Mrs. Mumma and Mrs. Morgan have responded to those I requests, resulting in the production to Mr. Mumma, II of thousands of pages of r information. Ultimately, the difficulty inherent in responding to Mr. Mumma, II's requests is i that he has measured the completeness of disclosure not by its extent, but by what the I documents produced show (or do not show). Mr. Mumma, II appears fervently to believe! that Mrs. Mumma and Mrs. Morgan, along with various attorneys, accountants, bankers, I government officials and court personnel, have engaged in a massive campaign to I defraud him. Because the voluminous documents produced to date do not show that this I occurred, he refuses to accept the accuracy or completeness of the information provided. I In this regard, it is worth noting that Mr. Mumma, II has filed against Mrs. Mumma, Mrs. I' Morgan, their present and former counsel, one of his sisters and the buyer of the Pennsy , Supply Businesses an action alleging just such fraud.J That action remains pending, and I Mr. Mumma, II has taken extensive discovery in it. I Notwithstanding the foregoing, Mrs. Mumma and Mrs. Morgan, subject to and without waiver of their objections below, wish to have the audit proceeding move i forward. Toward that end, they will make available for inspection at a mutually I convenient time extensive documents in response to Mr. Mumma, II's sweeping requests.1 These documents will include: ~ In re Estate of Mumma, No. 21-86-398, Transcript of Proceedings (O.C. Cumbo May II, 1992). Robert M Mumma, II v. eRR Inc., et a1., No. 99-1546 (C.P. Cumberland). J -2- \ . 1. So that there is no misunderstanding or question on the subject, all documents previously provided to Mr. Mumma, II and listed on Schedule 1. 2. Any corporate minutes, stock certificates or stock ledgers located and not previously produced regarding Pennsylvania Supply Company, Kim Company, Nine Ninety-Nine, Inc. or Pennsy Supply, Inc. 3. Ledgers, journals, workpapers, vouchers and other records maintained with respect to the Estate and the Trusts. 4. Ledgers, journals, workpapers, vouchers and other records maintained with respect to the Mumma Realty Associates tenancies-in-common. 5. Ledgers, journals, workpapers, vouchers and other records maintained with respect to D-E Distribution Corp. 6. Ledgers, journals, workpapers, vouchers and other records maintained with respect to G-A- T Distribution Corp. 7. Invoices for legal advice and services rendered to Mrs. Mumma and Mrs. Morgan with respect to the administration of the Estate and the Trusts. 8. Invoices from Hadley & Company and/or Lucker, Kennedy & Felmeden for work performed for the Estate or the Trusts. It is noteworthy that the scope of Mr. Mumma, II's requests have broadened over time, from specific requests set forth in certain discovery prepared by his prior counsel and attached to his current request to his present sweeping demand for "absolutely everything." Mrs. Mumma and Mrs. Morgan believe that the non-privileged documents they will produce are responsive to the requests set forth on the pages entitled Appendix B and Appendix C (and hand-numbered 464-466 and 473-475) that are attached near the end of Mr. Mumma, II's latest discovery request. General Obiections 1. Mr. Mumma, II executed an irrevocable disclaimer (the "Disclaimer") of his interest under the Will, which was filed with the Court in January 1987. In the Disclaimer, Mr. Mumma, II "absolutely, irrevocably and unqualifiedly" revoked and disclaimed all his rights in and to the principal of the marital trust (the "Marital Trust") and the residuary trust (the "Residuary Trust") established under the Will (the "Trusts"). Mr. Mumma, II's Disclaimer had the effect of substituting his three children as remaindermen of his share of the Trusts in his place. At least one of Mr. Mumma, II's three children remains a minor. Mr. Mumma, II purportedly revoked the Disclaimer in November 1989; however, the validity of Mr. Mumma II's revocation has not been litigated by a person with proper standing to do so. (A more complete account of the -3- , . Disclaimer issue is set forth more in the attached June 9, 2005 letter to Taylor P. Andrews.) Mrs. Mumma and Mrs. Morgan object to Mr. Mumma, II's discovery, and generally to his participating in these proceedings, absent a proper adjudication of Mr. Mumma, II's standing to do so. Mr. Mumma, II's actions inside and outside the formal litigation context have substantially increased the expense and time associated with the administration of the Estate and the Trusts, to the detriment of all of those holding interests under the Will. His actions have resulted in hundreds of thousands of dollars in otherwise unnecessary litigation and other expenses, all of which has detracted from the value of the Estate and the Trusts to the beneficiaries. Before Mrs. Mumma and Mrs. Morgan, the Estate and the Trusts should be required to incur the time and expense necessary to respond to Mr. Mumma, II's objections, the question whether Mr. Mumma, II has standing even to file a petition for removal should be resolved with finality. Mrs. Mumma and Mrs. Morgan believe that the appointment of a guardian ad litem for Mr. Mumma, II's minor children with specific power to litigate on their behalf the question o~ the validity of the revocation is appropriate and necessary under the circumstances to . determine whether Mr. Mumma, II has standing to participate in these proceedings. Notwithstanding this issue, Mrs. Mumma and Mrs. Morgan have responded below to the individual interrogatories served upon them by Mr. Mumma, II. 2. Mrs. Mumma and Mrs. Morgan object to Mr. Mumma, II's discovery to the extent that it seeks information and records relating to the testator's management of and interests in businesses and other assets prior to his death on April 12, 1986. Not only would such discovery require an unreasonable investigation, but the information sought i$ beyond the scope of Mrs. Mumma's and Mrs. Morgan's administration and accounting o~ the Estate and the Trusts. Therefore, in this regard, Mr. Mumma, II's discovery is overly! broad, unduly burdensome, oppressive and not reasonably calculated to lead to the discovery of admissible evidence. Mr. Mumma, II already has been provided with financial statements for various family-owned businesses from the early 1 960s through 1986, along with financial statements of Mr. Mumma, Sr. personally. He also has been provided with all minute books, stock books and stock ledgers for the family-owned businesses that have been located to date, and with copies of any agreements among the shareholders of the companies that have been located, whether or not such documents were in effect at the time of Mr. Mumma, Sr.'s death. Mr. Mumma, II also has been provided with the complete federal estate tax return and related documents. These documents are sufficient to establish the identities of assets which passed into the Estate and/or the Trusts at the time of Mr. Mumma, Sr.'s death. 3. Furthermore, Mrs. Mumma and Mrs. Morgan object to Mr. Mumma II's requests for discovery about the operations, internal workings and business records of entities in which the Estate and/or the Trusts currently own an interest and entities in which the Estate and/or Trust owned an interest at one time over the past twenty years. Such discovery overlaps or duplicates issues that previously have been the subject of discovery, informal production of information, litigation and/or final adjudication. Given the numerous lawsuits that have been filed since the death of Robert M. Mumma more -4- ! ' than nineteen years ago, there is very little new ground to be covered. Mr. Mumma, II first petitioned to remove Mrs. Mumma and Mrs. Morgan in January 1989. He has since sought appointment of a temporary fiduciary, and also has attempted on two occasions to enjoin significant transactions into which Mrs. Mumma and Mrs. Morgan sought to enter on behalf of the Estate and the Trusts. None of Mr. Mumma, II's requests in this regard has been granted. Mr. Mumma, II first initiated litigation involving aspects of his father's Estate in 1988. At that time, he filed an action, through one of his companies, described by the court as "a son suing his mother over his deceased father's car.'~ Mr. Mumma, II also filed in 1988 litigation relating to the operations and activities of Lebanon Rock, Inc., a corporation 50% owned by the Estate and 50% owned by Mr. Mumma, II. The onset of negotiations between Mrs. Mumma and Mrs. Morgan to sell certain family-owned businesses and assets to a third party resulted in litigation over whether Mr. Mumma, II possessed certain rights of first refusal to purchase those businesses and assets.~ Thereafter, Mr. Mumma, II sought to enjoin the closing of the sale of the businesses and the subsequent closing after the purchaser elected to exercise an option granted in the original transaction to purchase the Estate's interest in another corporation. ~ He also challenged the terms of the consummated sale in an action filed in Philadelphia County.l Mr. Mumma, II also has pursued numerous other actions naming Mrs. Mumma and Mrs. Morgan as defendants and alleging various improprieties in their actions as fiduciaries and/or officers and directors of the family-owned businesses.i He also has filed lis pendens proceedings against real property owned by entities in which the Estate and/or the Trusts own a controlling interest,2. as well as numerous actions against ! Gemini Equipment Co. v. Pennsy Supply, Inc., No. 3205 S 1988 (C.P. Dauphin). Barbara McK Mumma, et al. v. Robert M Mumma, II, et al., No. 66 Equity 1988 (C.P. Cumberland). In re Estate of Robert M Mumma, Deceased, No. 21-86-398 (C.P. Cumberland). Robert M Mumma, II, et al. v. D-E Distribution Corp., et aI., No. 666 Equity, Nov. 1993 (C.P. Philadelphia Jan. 20, 1995). See Robert M Mumma, IIv. Nine Ninety-Nine, Inc., etal., No. 14 Equity 1990 (C.P. Cumberland); Robert M Mumma, Il v. Nine Ninety-Nine, Inc., et al., No. 15 Equity 1990 (C.P. Cumberland); Robert M Mumma, II v. Barbara McK Mumma, et aI., No. 84 Equity 1990 (C.P. Cumberland); Robert M Mumma, II v. CRR Inc., et al., No. 99-1546 (C.P. Cumberland); Robert M Mumma, Il v. Boba/i Corp.. et al., No. 5683 Equity of 2000 (C.P. Dauphin). See Robert M. Mumma, Ilv. Mumma Realty Associates. No. 91-)2 Equity (C.P. Perry); Robert M. Mumma, Il v. Mumma Realty Associates, No. 5007 Equity 1991 (C.P. Dauphin); Robert M Mumma, IIv. Mumma Realty I, et aI., No. 3932 S 1999 (C.P. Dauphin); Robert M Mumma, Il v. Mumma Realty I, et aI., No. 99-811/99-10 LIS PEN (C.P. Perry); Robert M Mumma. Il v. Mumma Realty I, et al., No. 99-5569 (C.P. Cumberland). ~ ~ 1 I 2 -5- government officials and the accountants, attorneys and bankers for and the rrchaser of assets from the Estate, the Trusts and/or various family-owned corporations. Over the course of this litigation, Mrs. Mumma and Mrs. Morgan, their counsel, and other entities have produced thousands of pages of documents to Mr. Mumma, II. Mrs. Mumma, Mrs. Morgan, their counsel and their accountants also have produced, both formally and informally, thousands of additional pages of documents on various matters as to which Mr. Mumma, II has inquired. Among the other persons and entities who have produced documents to Mr. Mumma, II are Barbara Mann Mumma, Linda Mann Mumma, the Boswell, Tintner, Piccola & Wickersham and Stradley, Ronon, Stevens & Young law firms, CRH pIc, Dauphin Deposit Bank & Trust Company, Lucker, Kennedy & Felmeden and Hadley & Company. The documents produced relating to the companies have included financial statements, minute books, stock books and certificates, stock ledgers and numerous other documents. At the time of the sale of the operating Pennsy Supply Businesses to CRH pIc in 1993, Mr. Mumma, II was provided with current information regarding the identities of the assets sold, the valuation thereof, and all other information to which he was entitled as a shareholder of Nine Ninety-Nine, Inc. and Hummelstown Quarries, Inc. Mr. Mumma, II's discovery requests in the prior proceedings have been the subject of motion practice, briefing, argument and Court orders regarding the appropriate scope of discovery. Mr. Mumma, II's attempts, in essence, to revisit those prior discovery rulings in the instant proceedings are inappropriate. In light of this extensive production, Mr. Mumma, II's requests for information regarding, for example, the identities of shareholders, officers, directors, assets, etc. of various family-owned corporations is duplicative, overly broad and unduly burdensome. Mr. Mumma, II is equally able to obtain the requested information from documents he has previously been provided. Notwithstanding the foregoing, Mrs. Mumma and Mrs. Morgan will produce financial and other records relating to the Mumma Realty Associates tenancies-in-common, D-E Distribution Corp. and G-A- T Distribution Corp. 4. As much of the information sought can have no bearing upon issues properly before the Court in this proceeding, it appears that Mr. Mumma, II is seeking through discovery in this case documents and information for use in one or more other proceedings. Mrs. Mumma and Mrs. Morgan object to Mr. Mumma, II's discovery on the grounds and to the extent that it relates such other actions, or to attempts by Mr. 1D Robert M Mumma, II v. Commonwealth of Pennsylvania, et al., No. 477 M.D. 2004 (Pa. Cmwlth.); Robert M Mumma, IIv. Lucker, Kennedy & Felmeden, No. 91-SU-01900-01 (C.P. York); Robert M Mumma, /Iv. George W. Hadley, Jr., et al., No. 91-SU-02900-01 (C.P. York Dec. 6, 1994); Robert M Mumma, /I v. Arthur L. Klein, et al., No. 4430 (C.P. Cumberland); Robert M Mumma, II v. Dauphin Deposit Bank & Trust Co., No. 4753-S 1993 (C.P. Dauphin); Robert M Mumma. IIv. PennsySupply, Inc., No. No. 99- 2765 (C.P. Cumberland); Robert M Mumma, /Iv. Harry G. Lake, Jr., eta/., No. 2004- CV-1540 (C.P. Dauphin). -6- Mumma, II, in these IToceedings, to re-litigate issues that have been litigated to finality in other proceedings. Such discovery is overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence in the instant proceeding. The right of a beneficiary to inspect Estate- or trust-related records is not without limit. The right "must be exercised in good faith and with due regard for the rights of other interested parties."U Mr. Mumma, II's past course of conduct gives Mrs. Mumma and Mrs. Morgan great concern regarding the PTses for which Mr. Mumma, II seeks much of the information sought by his discovery. 5. Mrs. Mumma and Mrs. Morgan object to the instructions and definitions accompanying Mr. Mumma, II's discovery on the grounds and to the extent that they purport to expand upon the obligations imposed upon Mrs. Mumma and Mrs. Morgan by applicable law and rules of procedure. II Those proceedings include, inter alia, In re Estate of Robert M Mumma, Deceased, No. 21-86-398, Opinion and Order of Court (O.C. Cumberland Aug. 4, 1993), aff'd, 437 Pa. Super. 672, 649 A.2d 467 (1994) (rejecting attempt to enjoin sale of Pennsy Supply Businesses); Barbara McK Mumma, et al. \I. Robert M Mumma, II, et al., No. 21-86- 398, Opinion and Order (O.C. Cumberland Mar. 8, 1989) (precatory language in wi)) did not create first refusal right), appeal discont., No. 206 Harrisburg 1989 (Pa. Super. May 17, 1989); Barbara McK Mumma, et al. \I. Robert M Mumma, II, et al., No. 66 Equity 1988, Opinion and Order (C.P. Cumberland Mar. 24, 1992) (Mr. Mumma, II did not possess oral or contractual first refusal right),post-l1'ial motion denied andfinal decree entered, Opinion and Order (C.P. Cumberland Nov. 5, 1992), aff'd, 433 Pa. Super. 660, 639 A.2d 846 (1993), allocatur denied, 539 Pa. 679, 652 A.2d 1324 (1994); Mumma \I. Pennsy Supply, Inc., No. 99-2765 Equity, Opinion and Decree Nisi (C.P. Cumberland May 17,2002) (Mr. Mumma, II did not hold rights under 1961 shareholders' agreement or stock certificate for corporation whose name had been changed), post-trial motions denied andfinal decree entered, Opinion and Final Decree (July 29,2002), aff'd, 833 A.2d 1156 (pa. Super. 2003), allocatur denied, 577 Pa. 723, 847 A.2d 1287 (2004). Estate of Rosenblum, 459 Pa. 201,215,328 A.2d 158, 165 (1974); id. at 215-16,328 A.2d at 165 (trustee is not required to submit to "vexatious and unwarrantable demands" and "safeguards. . . against abuse of discovery and absence of good cause are available to (a trustee), as to any other litigant"). Id at 215-16,328 A.2d at 165; Pa.R.C.P. 4011 ("no discovery. . . shall be permitted which. . . is sought in bad faith. . . [or] would cause unreasonable. . . burden or expense. . . . "). See, e.g., Lebanon Roclc, Inc. \I. Elco Concrete Prods., Inc., No. 373HBG90, Memorandum at 11 n.4 (Pa. Super. July 3, 1991) ("[Mr. Mumma, II's] past conduct evidences that he will exceed all bounds to force a favorable result. "); In re Estate of Mumma, No. 21-86-398, Opinion and Order at 8 (O.C. Cumberland Mar. 6, 1992) ("if anyone is hampering [the administration of the estate] or endangering the estate, it is [Mr.) Mumma, 11]."); see also In re Estate of Mumma, No. 21-86-398, Opinion and Order at 6- i 7 (O.C. Cumberland Nov. S, 1992) ("it is evident that if anyone is acting in detrimental fashion in regard to the estate, it is [Mr. Mumma, 11]"). Mr. Mumma, II also has operated! businesses that operated in competition with businesses in which the Estate and or the Trusts owned an interest. See In re Estate of Mumma, No. 21-86-398, Proceedings before Sheely, PJ. (O.C. Cumbo May 11, 1992) ("I can certainly see that there. . . is competition from [Mr. Mumma, II's] businesses. . ."). 11 11 -7- 6. Mrs. Mumma and Mrs. Morgan object to the definition of '''you' or 'your'" in Mr. Mumma, II's discovery on the grounds and to the extent that it purports to impose on Mrs. Mumma and Mrs. Morgan an obligation to respond on entities other than themselves, the Estate and/or the Trusts. Mrs. Mumma and Mrs. Morgan are responding to Mr. Mumma, II's interrogatories solely in their capacities as executrixes of the Estate of Robert M. Mumma and trustees of the Trusts. 7. Mrs. Mumma and Mrs. Morgan object to Mr. Mumma, II's discovery on the grounds and to the extent that it seeks documents or information protected by the attorney-client privilege, the attorney work product doctrine, any other applicable privileges, or that would result in disclosure of Mrs. Mumma's, Mrs. Morgan's, the Estate's and/or the Trusts' counsels' mental impressions, conclusions, opinions, memoranda, notes or summaries, legal research, or legal theories concerning this or any other litigation. Mrs. Mumma, Mrs. Morgan, the Estate and the Trusts will suffer prejudice if Mr. Mumma, II is granted access to such information. Many of the legal services rendered to Mrs. Mumma and Mrs. Morgan as executrices of the Estate and trustees of the Trusts has related to the defense of claims asserted by Mr. Mumma, II as an adverse litigant for more than fifteen years. His conduct has already resulted in hundreds of thousands of dollars in otherwise unnecessary litigation and other expenses, all of which detracted from the values of the Estate and Trusts. While beneficiaries of estates or trusts may, in a general sense, have certain rights to information regarding those entities, or to legal services provided to them, such rights do not require the disclosure to adverse litigants of legal strategy, impressions of counsel or other privileged or sensitive information relating to the defense of claims asserted by the person seeking the production of the information.M Mr. Mumma, II's demands for privileged documents and information extends far beyond documents reflecting legal advice regarding the administration of the Estate or the Trusts, encompassing as well to discovery of litigation strategy pertaining to, in part, litigation that remains ongoing. Even if Mr. Mumma, II is ultimately determined to be a beneficiary of the Estate or the Trusts, he is not entitled to this type of privileged information. Such discovery is, therefore, overly broad, unduly burdensome, oppressive and improper. 8. Mrs. Mumma and Mrs. Morgan reserve all rights on behalf of the Estate and the Trusts to seek from Mr. Mumma, II costs and expenses associated with responding to his discovery, his objections to the accounts or any allegations made in these proceedings. .JJ. See, e.g., Follansbee v. Gerlach, S6 Pa.D.&C.4th 483, 486 (Pa.C.P. Allegheny 2002) ("[t]he case law holds that legal advice obtained by a trustee, where its interests differ from the interests of the beneficiaries, is protected by the attomey-client privilege" and "[m]ostjurisdictions distinguish between communication about potential liability and communications about trust administration and apply the attomey-client privilege only tOI the former") (citations omitted). -8- Dated: July 13, 2005 -9- rady L. Attorney . . No. Michael J. Riffitts Attorney J.D. No. 93578 Morgan, Lewis & Bockius LLP 1701 Market Street Philadelphia, P A 19103-2921 215.963.5079/5418 Attorneys for Barbara McK. Mummaj and Lisa M. Morgan : 1 ' I I I I I 1 ! CERTIFICATE OF SERVICE I hereby certify that on July 13,2005, a true and correct copy of the foregoing Responses of Barbara McK. Mumma and Lisa M. Morgan to Objector's Discovery Requests in the Form of Interrogatories and Requests for Production of Documents to the ExecutrixesITrustees was served by First Class U.S. Mail, postage prepaid, upon the following persons: Robert M. Mumma, II Box 58 McCormick Road Bowmansdale, P A 17008 Robert M. Mumma, II 6880 SE Harbor Circle Stuart, FL 34996 Daryl E. Christopher, Esquire P.O. Box 480 Camp Hill, P A 17001 Kirk S. Sohonage, Esquire P.O. Box 480 Camp Hill, P A 17001 Ralph A. Jacobs, Esq. Ralph A. Jacobs & Associates LLC 215 South Broad Street, 10th Floor Philadelphia, P A 19107 Taylor Putney Andrews, Esq. Andrews & Johnson 78 West Pomfret Street Carlisle, PA 17013-3216 Dated: July 13, 2005 SCHEDULE 1 - Index of Documents Produced to Robert M. Mumma. II Description Date PaR;es Where Produced Documents produced in 1988-89 P 1-306 Mumma v. Mumma, N~. 66 Equity connection with Equity 66 1988 (CP Cumb) I litigation In re Estate a/Mummaj No. 21-86- 398 (OC Cumb) Documents re Pennsylvania 1988-89 None Mummav. Mumma,No 66 Equity Supply and Kim Co, MRA 1988 (CP Cumb) In re Estate of Mumma, No. 21-86- 398 (OC Cumb) Documents re Pennsylvania 11/1990 LKF 1-20 & H 1- Mumma v. Mumma, Nc . 66 Equity Supply, Kim Co, MRA 1059 1988 (CP Cumb) (produced by accountants for Estate, businesses) Documents re various 1989-90 None (5000+ Mumma v. Mumma, Nc . 66 Equity companies (produced by pages) 1988 (CP Cumb) accountants for Estate, I businesses) I Records re CRR transaction, 7-9/1991 DI-D944 Mumma v. Mumma,No. 66 Equity 999, HQI 1988 (CP Cumb) In re Estate of Mumma, No. 21-86- 396 (OC Cumb) Documents re Pennsylvania 7/1993 None (several Mumma v. Mumma,No. 66 Equity Supply, Kim Co (admitted hundred pages) 1988 (CP Cumb) at trial in Mumma v. Pennsy Mumma v. 999, No. 14 rqUity 1990 Supply) (CP Cumb) Mummav. 999, No. 15 Equity 1990 (CP Cumb) Mumma v. Mumma, No 84 Equity 1990 (CP Cumb) Documents re Pennsylvania 9/1993 None (several Post-sale negotiations . Supply and Kim Co hundred pages) I I Closing binders for sale of 12/1995 12 volumes, c. Mumma v. G-A-T, No. 1. 23 Civil Pennsy Supply Business 350 documents 1994 (CP Cumb) Documents re GAT, HQI, 4/1997 GAT 1-38 Mumma v. G-A-T, No.4 23 Civil Pennsylvania Supply HUM 1-846 1994 (CP Cumb) (produced by Stradley) PASUP 1-217 Corporate records for 1999-2000 AI-A1561 Mummav. G-A-T, No.4 23 Civil Pennsy, 999, HQI (produced 1994 (CP Cumb) bv Pennsy Supply) , Documents in response to 10/1999 - DF 1-1203 Various informal inquiries from 8/2000 RMM II , Jr . r- I Documents re 999, Pennsy, May 2000 1-325 Pennsy Supply litigatio miscellaneous matters roduced b Boswell Documents on various 5/2000, MLB 1-2675 Various companies, issues (produced 2/2002, b Mor an Lewis 10/2003 Documents re various 6/2000 STRD 1-1605 Mumma v. G-A-T, No. 123 Civil companies (produced by 1994 (CP Cumb) Stradle Docucments re various 7/2000 SRSY 1-2390 Mumma v. CRR, No.9 -1546 (CP companies (produced by Cumb) Stradle Documents re various 10/2003 HlC series (6000+ In re Estate of Mumma, No. 21-86- companies (produced by pages) 398 (OC Cumb) ~ accountants for Estate, Mumma v. G-A-T, No. 23 Civil companies) 1994 (CP Cumb) .! Mumma v. CRR, No. 9~"1546 (CP Cumb) . I Mumma v. Dauphin D osit, No. 4753 S 1993 CP Dau Documents re Pennsylvania 4/2005 DF 1204-1433 In re Estate of Mumma No. 21-86- Su I , Kim Co, MRA 398 OC Cumb MDw~a ,qJ:ORMATION . ADVICE. ADVOCACY I' I 10 EAsT IDOH STREET CARLISLE, PENNSYLVANIA 17013 TELEPHONE (717)243-3341 r ACSIMILE (717) 243-1850 fNTERNET www.mdwo.com . ATTORNEYS & COUNSELLORS IAT LAW i WILLIAM F.MARTSON . CARL C. RISCH JOHN B. FOWLER ill DA\!m A. FITZSIMONS DANIEL K. DEARDORFF DAVID R. GALLOWAY THOMAS J. WILLIAMS. ~STOPHER E. RICE Ivo V. Olio ill JENNIFmt. L. SPEARS GEOROE B. FALLER JR.. lIIuARY A. DEAN -BoARD CE1rrmED CIVIL TRw. SP~ June 9, 2005 ~ & ~ ~ VIA HAND DELIVERY Taylor P. Andrews, Esquire ANDREWS & JOHNSON 78 West Pomfret Street Carlisle, PA 17013-3216 RE: Estate of Robert M. Mumma - Auditor Proceedings Our File No. 5844.1 Dear Mr. Andr.ews: We write in response to your inquiries at the conference on May 13, 2005 and in yoUlj letter of May 24,2005 to further explain the basis for Mrs. Mumma and Mrs. Morgan's concern tJiat the question of the validity of Mr. Mumma, II's revocation of his disclaimer remains an open on~. For your convenience, a chronology relating to the disclaimer, and rulings of various courts reg~ding it, is enclosed. . . Put most fundamentally, the question is whether, if one of MI. Mumma, II's childr~ were to contest the validity of that disclaimer,.he or she would be foreclosed by any former ruling pfthe Court from doing so~ Mrs. Mumma and Mrs. Morgan believe that the answer must be no. It ~s true that the revocatio. n issue has had a long history. However, there has been only one ru.ling whictven . pwported to address the validity of the disclaimer, and that was President Judge Sheel 's on November 17, 1989. Judge Sheely permitted Mr. Mumma, II to revoke his disclaimer ov the objection of Robert M. Frey, who had been appointed guardian ad litem of Mr. Mumm" II's children. He entered a final order on March 21, 1991, and overruled Mr. Frey's exceptions ~ that final order on July 21, 1993. I However, the Superior Court dismissed Mr. Frey's appeal on July 18, 1994 becaulse he "lack[ed] standing to appeal the decision to revoke [Mr. Mumma, II]'s disclaimer." The effect of this determination was to render the proceedings before Judge Sheely, insofar as they would bind or foreclose later challenge by Mr. Mumma, TI's children, a nullity. Because Mr. Frey l~ked standing to act as their guardian in the matter, the children were unrepresented in the proceetijngs permitting the revocation, and the decision cannot be binding on them. INFORMATION · ADVICE · ADVOCACY SM r ,j Taylor P. Andrews, Esquire ANDREWS & JOHNSON June 9, 2005 Page 2 The subsequent proceedings before Judge Hoffer, and later the Superior Court, do nolt alter this state of affairs. In his February 23, 2000 order, President Judge Hoffer declined to app/oint a guardian ad litem with proper standing to litigate the validity of the disclaimer. Mrs. Murnnia and Mrs. Morgan appealed that ruling, and on January 3,2001, the Superior Court concluded tl1at the appeal was not ripe because it found no final, appealable order. Mrs. Mumma and Mrs. Morgan subsequently filed amended and restated exceptions to Judge Hoffer's ruling, and have raise4 their concerns about the disclaimer in various other filings in these proceedings. . The upshot of the foregoing history is that, despite numerous orders touching on the ~ssue, Mrs. Mumma and Mrs. Morgan still cannot act as fiduciaries, with respect to accountipg or distribution, without the concern that Mr. Mununa, IT's revocation might, at some later ~e, be deemed to be invalid. Such a determination, in proceedings brought by persons having ~roper standing, could subject Mrs. Mumma and Mrs. Morgan to liability for actions taken in the be ief or understanding that Mr. Mumma, IT had properly revoked his disclaimer. Given the possibi ity of . such an outcome, Mrs. Mumma and Mrs. Morgan continue to believe that they need an anster to . the question of Mr. Mumma, IT's status in order to determine to whom they must account (an~ what resources they should expend in doing so) or, ultimately, to whom distributions must be made. I Case I law on the subject suggests that Mrs. Mumma and Mrs. Morgan cannot safely proceed qn the assumption that Mr. Mumma, TI's revocation ultimately would be upheld. See In re Est~te of Ciaffoni, 787 A.2d 971 (Fa. Super. 2001); Williams Estate, 22 Fiduc. Rep. 2d 87 (C.P. Sullivan 2002); Pedrick Estate, 19 D.&C.4th 360 (C.P. York 1993). Mrs. Mumnia and Mrs. Morgan have stated from the time of Mr. Mumma, IT's initial r~uest to revoke his disclaimer that they do not take any position on the meritS of his request. That po,ition has been consistent, and Mr. Mumma, TI has at times claimed that it amounts to a ''waiver'' (j)f the issue. Mr. Mumma, IT also has claimed that Mrs. Mumma and Mrs. Morgan have ''waived'' the lissue becau~e, . despite th. eir best efforts, they have not ?een able to persuade the Court to app.4int a guardIan. These arguments do not accurately descnbe Mrs. Mumma and Mrs. Morgan's effo~s to resolve this issue, but, more importantly, they are beside the point. The issue of whether Mr. Mumma, II properly revoked his disclaimer is not one for Mrs. Mumma or Mrs. Morgan to waive. Rather, it is the right of Mr. Mumma, IT's children to contest the validity of the disclaimer w~chis paramount and which, to date, remains unresolved. As a consequence, Mrs. Mumma and jMrs. Morgan continue to believe that it is essential that a guardian ad litem be appointed to represet;lt the interests of Mr. Mumma, IT's minor children on this issue. ! With respect to Mr. Mumma, IT's assertion that the law of the case doctrine bars any futther consideration of the validity of Mr. Mumma, IT's revocation by the Court, Mrs. Mumma and Mrs. Morgan believe that it does not for essentially the reasons discussed above - i.e., there has been no litigation of the issue to date by any persons having standing to do so. There can be no law dfthe case sufficient to bind interested persons who are not represented at the time of, and who cann(>t be bound by, the decision that is claimed to be preclusive. INFORMATION · ADVICE. ADVOCACY 8M ,,~ j. r , Taylor P. Andrews, Esquire ANDREWS & JOHNSON June 9, 2005 Page 3 Finally, with respect to the issue of prompt adjudication of the validity of Mr. Mumm(a, II's disclaimer, Mrs. Mumma and Mrs. Morgan believe that the appropriate step is the imm~diate appointment of a guardian ad litem to litigate the issue on behalf of Mr. Mumma, II's minor chi~dren, as well as notification to Mr. Mumma, II's son, Robert M. Mumma, ill, who has now passed tJ/le age of majority. (In order to ensure that Mr. Mumrila, n's son receives notice of any proceedings ~n the issue, Mrs. Mumma and Mrs. Morgan would request that Mr. Mumma, II be required to protide a current address for him.) A schedule for any necessary briefing, hearings, etc., could be estabJished following the appointment of the guardian. In order to ensure prompt review of any rulingE, n the issue, and to avoid the Superior Court's prior concern that such a ruling would not be . nal - although Mrs. Mumma and Mrs. Morgan believe that an order on the validity of the disc . er properly would be final for appeal purposes- any order on this issue could contain a statem t that it is final in accordance with Pennsylvania Rule of Appellate Procedure 342 so as to permit an 4ppeal and a final adjudication of this issue. Mrs. Mumma and Mrs. Morgan would hope to work wi1h you and other interested persons to determine the extent to which any proceedings with respect ~o the audit process could continue during the pendency of any appeal. Very truly yours, , MARTSON DEARDORFF WILLIAMS & ono lvo V. Otto ill IYO/jad Enclo~ cc: Brady L.Green, Esquire (w/enc;) Ralph A. Jacobs, Esquire (w/enc.) Mr. Robert M. Mumma, II (w/enc.) Joseph A. O'Connor, Jr., Esquire (w/enc.) Kirk S. Sohonage, Esquire (w/enc.) P;\FILE!S\DATAFIJ.J!IM1IImII '144.\ <_> 1747 (Xn)"....I.MIIImIII!IlIIcW44.\~ Icltcr 210 IIIltiIor INFORMATION · ADVICE. ADVOCACY SM " April 12, 1986 January 6, 1987 June 20, 1989 November 17, 1989 November 30, 1989 December 12, 1989 January 7, 1991 March 21, 1991 July 21, 1993 August 4, 1993 July 18, 1994 CHRONOLOGY RE DISCLAIMER Robert M. Mumma died Mr. Mumma, II executed a disclaimer of his interest "absolutelty, irrevocably and unqualifiedly" Mr. Mumma, n petitioned to revoke his disclaimer Sheely, P.J. granted Mr. Mumma, n's petition to revoke his disclaimer Guardian ad litem filed exceptions to Sheely, P.J.'s order permitting revocation of Mr. Mumma, II's disclaimer Guardian ad litem filecI a notice of appeal from the order permitting revocation of Mr. Mumma, II's disclaimer Superior Court remanded for a determination of exceptions Sheely, P.J. entered a final order permitting Mr. Mumma, n tq revoke his disclaimer Sheely, P.J., denied the guardian ad litem's exceptions to the final order Guardian ad litem filed a notice of appeal from the final order Superior Court dismissed guardian's appeal because he "Iack[~] standing to appeal the decision to revoke [Mr. Mumma, llJ's disclaimer" February 24, 1999 February 23,2000 March 3, 2000 March 24, 2000 January 3, 2001 July 28, 2003 ! I Mrs. Mumma and Mrs. Morgan requested appointment of a guardian ad litem ith authority to litigate the disclaimer issue pn behalf of Mr. Mumma, II's minor children i Hoffer, P.l, denied the request for appointment ofa guardian/ad litem I I i I Mrs. Mumma and Mrs. Morgan filed exceptions to the order I denying the request for appointment of a guardian ad litem , I i i ! Mrs. Mumma and Mrs. Morgan filed a notice of appeal from Ute order denying the request for appointment of a guardian ad li~ Superior Court quashed Mrs. Mumma's and Mrs. Morgan'~i eal because the order denying appointment of a guardian ad lit ''was not final because it did not dispose of all claims and of all p . es" I ! Mrs. Mumma and Mrs. Morgan filed Amended and Restated I Exceptions to the order denying appointment of a guardian a4 litem i 2