HomeMy WebLinkAbout05-03-04 (3)
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INRE:
ESTATE OF LOY T. HEMPT
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
ORPHANS' COURT DMSION
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NO. 21-77-231
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KALBACH OBJECTORS'
PROPOSED FINDINGS OF FACT
1.
Loy T. Hempt died on March 19, 1977. (Kalbach Ex. 1, Stipe 1).1
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2. Loy T. Hempt made a Will dated December 9, 1964 and one Codicil
dated December 12, 1969. (Kalbach Ex. 1, Stipe 2).
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3. Loy T. Hempt's Codicil appointed Max C. Hempt and Margaret Hempt
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as trustees of the trust created under Item Fifth of his Will (the "Loy T. Hempt
Residuary Trust"). (Kalbach Ex. 1, Stipe 3, Exs. A and B).
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4.
ITEM FIFTH of the Loy T. Hempt Residuary Trust states, in pertinent
part:
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. 1 All exhibit references herein refer to the exhibits introduced and admitted as part of the evidentiary
proceedings before the Master/Auditor on February 17, 18 and 19, 2004.
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"FIFTH: I devise and bequeath all the rest of my
estate, of whatever kind and whatever situate, to my
trustees hereinafter named, in trust as follows:
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(1) During such time as either or both of my wife,
Margaret, and my niece, Jean Doris Hempt, are
living, trustees shall pay to or expend directly for
the benefit of either or both of my wife and my niece
such parts or all or none of the net income and
principal as trustees may determine in their sole
and absolute discretion, to provide for their care,
support, and welfare, . . .
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(2) Upon the death of the survivor of my wife,
Margaret, and my niece, Jean Doris Hempt, . . .
trustees shall transfer the remaining principal as
follows:
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(a) Forty (40%) percent thereof to my
nephew, Max C. Hempt, if he is then
living, but if he is then dead, to his
then living issue, per stirpes.
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(b) Forty (40%) percent thereof to my
niece, Dorothy Mark, if she is then
living, but if she is then dead, to her
then living issue, per stirpes.
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(c) Twenty (20%) percent thereof to my
nephew, Robert H. Kalbach, Sr., if he is
then living, but if he is then dead, to
his then living issue, per stirpes."
(Kalbach Ex. 1, Stipe 2, Ex. A).
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5. Jean D. Hempt was Loy T. Hempt's niece. (Kalbach Ex. 1, Stipe 4
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and 6; Kalbach Ex. 2).
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6. Max C. Hempt was Loy T. Hempt's nephew. (Kalbach Ex. 1, Stipe 4
and 6; Kalbach Ex. 2).
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7. Margaret Hempt was Loy T. Hempt's wife and she died in 1988.
(Kalbach Ex. 1, Stipe 5).
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8. When Margaret Hempt died in 1988, Dorothy Hempt, Loy T. Hempt's
niece, became the successor co-trustee of the Loy T. Hempt Residuary Trust
pursuant to the Codicil. (Kalbach Ex. 1, Stipe 11).
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9. Dorothy Hempt, a/k/a Dorothy H. Mark, was the mother ofW. Robert
Mark, Forrest H. Mark and Steven E. Mark. (Kalbach Ex. 1, Stipe 9; Kalbach Ex.
2).
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10. When Dorothy Hempt died in 1995, Max Hempt became the sole trustee
of the Loy T. Hempt Residuary Trust. (Kalbach Ex. 1, Stipe 12).
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11. Max C. Hempt, a remainderman of the Loy T. Hempt Residuary Trust,
died on May 3, 1999 survived by his children, Gerald L. Hempt, George F. Hempt,
Martha H. Bair and Marian H. Semoff. (Kalbach Ex. 1, Stipe 8, Exs. A and B;
Kalbach Ex. 2).
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12. Dorothy Mark, a remainderman of the Loy T. Hempt Residuary Trust,
died on June 15, 1995 survived by her three children, Robert Mark, Forrest Mark and
Steven Mark. (Ex. 1, Stip. 9, Ex. A and B; Ex. 2).
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13. Robert H. Kalbach, Sr., a remainderman of the Loy T. Hempt Residuary
Trust, survives today, as do his two children, Robert H. Kalbach, Jr. and Richard C.
Kalbach. (Kalbach Ex. 1, Stip. 9, Exs. A. and B; Kalbach Ex. 2).
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14. Jean Doris Hempt was born on January 24, 1927 and, because of her
disability, she has since September 13, 1938 been a resident at The Woods School and
. Residential Treatment Center, Langhorne, Pennsylvania, a private facility.
(Kalbach Ex. 1, Stip. 7).
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15. Jean Doris Hempt is unmarried and has no children. Her parents are
deceased. (Kalbach Ex. 1, Stip. 7).
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16. By Final Decree of the Court of Common Pleas of Cumberland County,
Pennsylvania dated March 8,1985, entered to No. 117 Orphans 1985, Jean Doris
Hempt was adjudged an incompetent and Max C. Hempt and Dorothy H. Mark were
appointed guardians of Jean's estate, with no bond required. (Kalbach Ex. 1,
Stips. 13, 14, 16 and Ex. C; Kalbach Exs. 3 and 4).
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17. By Final Decree of the Cumberland County Court, dated May 10, 1990,
Max C. Hempt and Dorothy H. Mark were appointed guardians of the person of Jean,
with no bond required. (Kalbach Ex. 1; Stips. 14 and Ex. C; Kalbach Exs. 3
and 4).
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18. It is anticipated that Jean Doris Hempt will, during the balance of her
life, continue to reside at The Woods School and Residential Treatment Center.
(Kalbach Ex. 4, ~9).
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19. Jean Doris Hempt had two siblings, Dorothy H. Mark and Max C.
. Hempt. (Kalbach Ex. 2; Kalbach Ex. 1, Stipe 15).
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20. Because of her incompetency, Jean Doris Hempt never had and never
will have the capacity to make a valid will. The assets held in her guardianship
account will pass to her intestate heirs upon her death. (Kalbach Ex. 4, ~5, ~8;
Kalbach Ex. 1, Stipe 15).
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21. The intestate heirs of Jean Doris Hempt are the surviving children of
Max C. Hempt and Dorothy H. Mark. Specifically, her intestate heirs are as follows:
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Issue of Max C. Hempt
George F. Hempt
Gerald L. Hempt
Marian H. Semoff
Martha D. Bair
Issue of Dorothv H. Mark
W. Robert Mark
Forrest H. Mark
Steven E. Mark
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(Kalbach Ex. 1, Stipe 15).
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22. Robert H. Kalbach, Sr. is not an intestate heir of Jean Doris Hempt and
is entitled to no proceeds of her estate upon her death. (Kalbach Ex. 2; Kalbach
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Ex. 1, Stipe 15).
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23. In early July, 1996, Max C. Hempt and Gerald L. Hempt filed a Petition
for Appointment of Successor Trustee and Successor Guardian of Estate and of
Person in the Court of Common Pleas, Cumberland County, Pennsylvania (the "1996
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Co-Guardianship Petition"). (Kalbach Ex. 3).
24. The 1996 Co-Guardianship Petition was captioned only "In the Matter
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of Jean Doris Hempt, an Incompetent." (Kalbach Ex. 3).
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25. The 1996 Co-Guardianship Petition only references the following docket
numbers: (Kalbach Ex. 3).
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No. 2008 of 1942, which is the will of Jean's father, George
L. Hempt, in the Office of the Register of Wills of
Cumberland County.
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No. 253 of 1977, which is the proceeding in the matter of
the testamentary trust under the Will of George L. Hempt
for the benefit of Jean.
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No. 117 of 1985, Orphans' Court Division, the proceeding
adjudicating Jean Doris Hempt an incompetent and
appointing Max C. Hempt and Dorothy H. Mark guardians
of her estate.
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26. The 1996 Co-Guardianship Petition does not reference any of the docket
numbers for the Estate of Loy T. Hempt or the trust under the will of Loy T. Hempt,
which is Estate No. 21-77-231. (Kalbach Ex. 3).
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27. The 1996 Co-Guardianship Petition was not docketed or indexed in any
. docket relating to the Loy T. Hempt Estate or the Loy T. Hempt Residuary Trust.
(Kalbach Ex. 19).
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28. Notice of the filing of the 1996 Co-Guardianship Petition was not
provided to Robert H. Kalbach, Sr. or to his sons, Richard C. Kalbach and Robert H.
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Kalbach, Jr. (N.T. 17 - 18).2
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2 "N. T." refers to the Notes of Testimony from the hearing before the Master/Auditor on February 17,
18 and 19, 2004.
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29. Notice of the filing of the 1996 Co-Guardianship Petition was not
provided to Robert W. Mark, Forrest H. Mark or Steven E. Mark. (N.T.147).
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30. The filing of the 1996 Co-Guardian Petition, which included a request
for the appointment of Gerald L. Hempt as a successor Trustee of the Loy T. Hempt
. Trust, did not comply with Rule 12.6 of the Pennsylvania Orphans' Court Rules in
that it did not set forth.the names, addresses and relationships of all parties in
interest and that those who have not joined in or consented to the petition have been
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given notice of the intention to file the petition or the reason for failure to give such
notice.
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31. Paragraph 16 of the 1996 Co-Guardian Petition set forth an erroneous
and deliberate misleading averment of fact wherein it stated that the appointment of
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Petitioner Gerald L. Hempt as a Co-Trustee under Testamentary Trusts for the
benefit of Jean would not adversely affect the interests of any other person.
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32. The Final Decree signed by the Honorable Harold E. Sheeley in
response to the 1996 Co-Guardianship Petition purports to appoint Gerald L. Hempt
as a co-trustee with Max C. Hempt of the testamentary trust for the benefit of Jean
Doris Hempt under the will ofLoy T. Hempt. (Kalbach Ex. 3).
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33. By Decree of the Court of Common Pleas of Cumberland County dated
September 3,1996, Gerald L. Hempt was appointed as Co-Guardian (with his father,
Max C. Hempt) of the estate and of the person of Jean Doris Hempt. (Kalbach Ex.
3).
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. 34. Since Max Hempt's death on May 23, 1999, Gerald L. Hempt has been
sole Guardian of the estate and of the person of Jean Doris Hempt. (Kalbach Ex. 1,
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Stipe 16, Ex. C).
35. Gerald L. Hempt is, simultaneously, purported Trustee of the Loy T.
. Hempt Residuary Trust, a beneficiary of the Loy T. Hempt Residuary Trust,
Guardian of the Jean Doris Hempt Estate, and a beneficiary of the Jean Doris Hempt
Estate. (N.T.42-43).
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36. In a "Petition for Appointment of Successor Co-Trustee and Successor
Co-Guardian of Estate and Person" filed in the Court of Common Pleas of
Cumberland County on or about May 18, 2001, Gerald L. Hempt and his brother,
George F. Hempt, sought, inter alia, to have George F. Hempt appointed as Co-
Guardian (with Gerald L. Hempt) of the estate and of the person of Jean Doris
Hempt (the "2001 Co-Guardianship Petition"). (Kalbach Ex. 1, Stipe 16, Ex. C).
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37. The 2001 Co-Guardianship Petition was captioned only "IN RE:
ESTATE OF JEAN DORIS HEMPT, an Incompetent Person" and was docketed only
to No. 117 ORPHANS' 1985. (Kalbach Ex. 1, Stipe 16, Ex. C).
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38. The 2001 Co-Guardianship Petition also sought to have George F.
Hempt appointed as co-trustee of the Loy T. Hempt Residuary Trust. (Kalbach Ex.
1, Stipe 16, Ex. C).
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39. The Co-Guardianship Petition was not docketed or indexed in any
docket relating to the Loy T. Hempt Estate or the Loy T. Hempt Residuary Trust.
. (Kalbach Ex. 1, Stipe 16, Ex. C; Kalbach Ex. 19).
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40. Robert H. Kalbach, Sr. found out about the 2001 Co-Guardianship
Petition through a conversation with Forest Mark at a meeting of the shareholders of
C.A. Hempt Estate, Inc. (N.T. 14-16).
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41. No notice of the filing of the 2001 Co-Guardianship Petition was
provided to Robert H. Kalbach, Sr.. (N.T.15).
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42. Advancement of the Co-Guardianship Petition has not been withdrawn
but has been stayed by agreement. (N.T.54).
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43. The value of the Jean Doris Hempt Estate as of January 31,2002,
excluding: her 1,547 shares of Hempt Brothers, Inc. ("Hempt Brothers") and 2,000
shares of C.A. Hempt Estate, Inc. ("C.A. Hempt Estate") is approximately One
Million Five Hundred Thirty-One Thousand Forty-Seven Dollars Sixty-Seven
($1,531,047.67)Cents. (Kalbach Ex. 20).
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44. The Jean Doris Hempt Estate owns 1,547 shares of Hempt Brothers
stock. (Kalbach Ex. 1, Stipe 17).
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45. Both Gerald L. Hempt and George G. Hempt are significant
shareholders of Hempt Brothers. (Kalbach Ex. 1, Stipe 17).
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46. Both Gerald L. Hempt and George F. Hempt are officers of Hempt
Brothers and are actively involved in the management and operation of Hempt
Brothers. (Kalbach Ex. 1, Stipe 18).
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47. Gerald L. Hempt is secretary/treasurer of Hempt Brothers, Inc. and
carries substantial responsibility for day-to-day operations and management of the
. corporation. (N.T.256).
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48. A valuation of Hempt Brothers stock as of August 31,2001 was
performed by Compass Capital Partners, Ltd. (the "Compass Valuation"). (Hempt
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Ex. 5).
49. The Compass Valuation valued the Hempt Brothers stock at $643.49
· per share as of August 31,2001 (Hempt Ex. 5, ~10), which is the lowest opinion of
share value of any proffered in these proceedings. (Kalbach Ex. 17; Hempt Ex. 7).
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50. The minimum value of the Jean Doris Hempt Estate's Hempt Brothers
stock, based solely on the Compass Valuation, was $995,479.03 as of August 31,2001.
. (Kalbach Ex. 1, Stipe 17; Hempt Ex. 5).
51. The Jean Doris Hempt Estate owns 2,000 shares ofC.A. Hempt Estate.
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(Kalbach Ex. 1, Stipe 19).
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52. The other shares of C.A. Hempt Estate are owned as follows:
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Robert H. Kalbach, Sr.
Trust FBO Martha D. Hempt
Gerald L. Hempt
George Hempt
Robert Mark
Forrest Mark
6,000 shares
2,000 shares
3,000 shares
3,000 shares
667 shares
667 shares
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Steven Mark
Loy T. Hempt Residuary
Trust
666 shares
6,000 shares
. (Kalbach Ex. 1, Stipe 19)
53. For purposes of a purported trust division as of April 25, 2002,
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Gerald L. Hempt, the purported trustee of the Loy T. Hempt Residuary Trust, who
is also the guardian of the Jean Doris Hempt Estate, valued a share of C.A. Hempt
. Estate at $104 (the "Trustee Valuation"). (Accounting', pg. 44(b)).
54. The value of the C.A. Hempt Estate stock owned by the Jean Doris
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Hempt Estate, based solely on the Trustee Valuation, is $208,000. (Kalbach Ex. 1,
Stipe 19; Accounting, pg. 44(b)).
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55. The value of the Jean Doris Hempt Estate, based solely on the
valuations identified herein, is $2,734,526.70. (Kalbach Ex. 20; Kalbach Ex. 1,
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Stips. 17 and 19; Hempt Ex. 5, Accounting pg. 44(h)).
56. The costs of residential care for Jean Doris Hempt at The Woods School
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and Residential Treatment Center for the five years ending 2001 are as follows:
8 "Accounting" refers to the First and Final Account for the Estate ofLoy T. Hempt, Deceased and
. Residuary Trust Under Will of Loy T. Hempt For Period Beginning March 19, 1977 and Ending May
31, 2002 filed of record on behalf of Gerald L. Hempt.
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1997 - $43,795
1998 - $48,096
1999 - $49,170
2000 - $58,601
2001 - $54,300
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(Kalbach Ex. 6).
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57. From 1982 through 2001, Jean Doris Hempt had total expenses for The
Woods School and miscellaneous expenses of $855,395. (Kalbach Ex. 8).
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58. From 1982 through 2001, Jean Doris Hempt had pre-tax income from
sources other than the Loy T. Hempt Residuary Trust of $778,789. (Kalbach Ex.
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6).
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59. From 1982 through 2001, the Trustee of the Lay T. Hempt Residuary
Trust distributed $883,194 to the Jean Doris Hempt Estate. (Kalbach Ex. 6).
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60. Gerald L. Hempt attempted to have Jean's expenses covered by
distributions from the Lay T. Hempt Estate, meaning that he failed to take into
account her separate assets and failed to consider whether Jean needed income from
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the Loy T. Hempt Estate to meet her needs. (N.T.83).
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61. The federal income tax paid on behalf of Jean Doris Hempt in 2001 is
incorrectly stated in Exhibit 6; the actual tax liability for 2001 was around $7,000.
(Kalbach Ex. 6; N. T. 58-59).
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62. After adjusting for the 2001 federal income tax misstatement, Jean
Doris Hempt's total expenses, including federal income tax, for the years 1982
through 2001 were $984,056.
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63. From 1982 through 2001, the Jean Doris Hempt Estate had income
from other sources and from the Loy T. Hempt Residuary Trust of $1,661,983.
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64. Gerald L. Hempt is responsible for preparing Jean Doris Hempt's tax
returns. (N.T.272).
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65. Jean Doris Hempt's expenses at the Woods School are deducted as
medical expenses on her federal income tax returns. (N.T. 272-273).
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66. Jean Doris Hempt has assets well in excess of those needed for her to
live in her customary manner. (Kalbach Ex. 4, 1114).
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67. Gerald L. Hempt, with his father Max, from 1996 to 1999 and solely
since 1999, has controlled the distribution of assets from the Loy T. Hempt Residuary
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Trust to the Jean Doris Hempt estate. (N.T.62).
68. For the period 1982 to 2001, the Loy T. Hempt Trust distributed
. $806,588 in excess of the amount of money necessary for the support of Jean Doris
Hempt, computed as follows:
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Distribution to Jean from Loy T.
Hempt Trust
Jean Doris Hempt total living
expenses $855,395
Jean Doris Hempt income other
than from Trust
Deficit
Distribution in excess of
Jean's needs
$833,194
788.789
$ 76,606
76.606
$806,588
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(Kalbach Ex. 6).
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69. On or about May 18, 2001, Gerald L. Hempt and George F. Hempt,
purporting to be Guardians of the Estate of Jean Doris Hempt, filed a petition in the
· Court of Common Pleas of Cumberland County entitled "Petition for Permission to
Make Gifts Pursuant to Section 5536(b), Probate, Estate and Fiduciaries Code (the
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"Petition to Make Gifts"). In the Petition to Make Gifts, George F. Hempt and
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Gerald L. Hempt allege that, "If Jean Doris Hempt was able to use her judgment,
Petitioners believe she would make lifetime gifts to her intestate heirs." (Kalbach
Ex. 4).
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70. No notice of the filing of the Petition to Make Gifts was provided to
Robert H. Kalbach, Sr. or his sons. (N.T.19).
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71. In the Petition to Make Gifts, Petitioners further requested that the
Court authorize them as Guardians of the Estate of Jean Doris Hempt "to make
outright gifts in the amount ofTen Thousand ($10,000.00) Dollars per year to each of
the seven (7) intestate heirs of Jean Doris Hempt. Specifically, the current intestate
heirs are the four (4) surviving children of her brother, Max C. Hempt, and the three
surviving children of her sister, Doris Hempt Mark, all seven (7) of whom would
share per capita her estate upon her death." (Kalbach Ex. 4).
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72. In the Petition to Make Gifts, Gerald L. Hemptand George F. Hempt
further requested "that the Court approve a plan of annual giving beginning
retroactively in 2000 and continuing until Jean Doris Hempt's death, which said plan
will authorize Petitioners (in their capacity as Guardians of the Estate of Jean Doris
Hempt) to make annual gifts in the amount ofTen Thousand ($10,000.00) Dollars to
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each of the above-described nephews and nieces of Jean Doris Hempt." (Kalbach
Ex. 4).
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73. In the Petition to Make Gifts, George F. Hempt and Gerald L. Hempt
further "request this Court to approve a one-time gift to her nieces and nephews of
. Jean Doris Hempt in the amount of Six Hundred Seventy-Five Thousand
($675,000.00) Dollars. (Kalbach Ex. 4).
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74. The Petition to Make Gifts has not been amended to date. (N.T.56).
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75. The Petition to Make Gifts remains pending but has been stayed by
agreement of the parties.' (N.T.41-42).
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76. Upon the death of Jean Doris Hempt, the assets of her estate will be
distributed in equal shares to her intestate heirs, George F. Hempt, Gerald L. Hempt,
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Marian H. Semoff, Martha D. Bair, W. Robert Mark, Forrest H. Mark and Steven E.
Mark. (Kalbach Ex. 1, Stipe 15).
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· The Petition to Make Gifts is not an issue to be decided by the Master/Auditor as part of these
proceedings. Rather, this evidence is presented by the Kalbach Objectors as evidence of their claim
. that Gerald L. Hempt improperly distributed funds to the Jean Doris Hempt Estate from the Loy T.
Hempt Residuary Trust, thereby benefiting him, personally, as an intestate heir of Jean.
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77. Upon the death of Jean Doris Hempt, the Loy T. Hempt Residuary
Trust will terminate, and by its provisions the assets will be distributed forty (40%)
percent to the issue of Max C. Hempt (George F. Hempt, Gerald L. Hempt, Marian H.
Semoffand Martha D. Bair), forty (40%) percent to the issue of Dorothy Mark (W.
Robert Mark, Forrest H. Mark and Steven E. Mark) and twenty (20%) percent to
Robert H. Kalbach, Sr. (Kalbach Ex. 1, Stip 2, Exs. A and B).
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78. Whether assets are distributed from the Loy T. Hempt Residuary Trust
or from the Jean Doris Hempt Estate upon the death of Jean Doris Hempt has a
direct financial impact on Robert H. Kalbach, Sr., since he would receive 20% of the
assets of the Loy T. Hempt Residuary Trust, whereas he would receive nothing if
those assets were instead distributed from the Jean Doris Hempt Estate. (Kalbach
Ex. 1, Stipe 15; Kalbach Ex. 1, Stipe 2, Ex. A).
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79. During the five (5) years preceding and including 2001, Jean Doris
. Hempt had total expenses at the Woods School (including miscellaneous expenses) of
$270,412. (Kalbach Ex. 6).
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80. During the five (5) years preceding and including 2001, Jean Doris
Hempt had pre-tax income from sources other than the Loy T. Hempt Estate of
$348,985. (Kalbach Ex. 6).
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81. During the five (5) years preceding and including 2001 (the same year
Gerald L. Hempt requested the Court to approve distributions exceeding $800,000
from the Jean Doris Hempt Estate to himself, his siblings and his Mark cousins),
Gerald L. Hempt directed the transfer of $315,500 from the Loy T. Hempt Residuary
Trust to the Jean Doris Hempt Estate. (Kalbach Ex. 6).
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82. In the five (5) full years since Gerald L. Hempt became a Trustee of the
Loy T. Hempt Estate and Trust (1996), through 2001, Jean Doris Hempt has had her
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own total income in excess of her expenses of $78,573; nevertheless, Gerald L. Hempt
has distributed an additional $315,500 from the Lay T. Hempt Estate and Trust to
. her Estate, and then sought (and continues to seek) court approval to distribute in
excess of $800,000 to himself, personally, and the other six (6) intestate heirs.
(Kalbach ex. 6; Kalbach Ex. 4).
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83. For the time period 1997 to 2001, the Loy T. Hempt Trust distributed
$315,500 in excess of the amount necessary for the care, support and welfare of Jean
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Doris Hempt (Kalbach Ex. 6), computed as follows:
1997: Distribution to Jean from Loy T. Hempt Trust $53,500
Jean's income other than from trust $72,135
. Jean's total living expenses 44.037
Jean's surplus income $28,098
Distribution from trust in excess of Jean's needs $53,500
1998: Distribution to Jean from Loy T. Hempt Trust $70,000
. Jean's income other than from trust $64,271
Jean's total living expenses 49.459
Jean's surplus income $14,812
Distribution from trust in excess of Jean's needs $70,000
. 1999: Distribution to Jean from Loy T. Hempt Trust $37,000
Jean's income other than from trust $73,794
Jean's total living expenses 49.802
Jean's surplus income $23,992
Distribution from trust in excess of Jean's needs $37,000
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2000: Distribution to Jean from Loy T. Hempt Trust $55,000
Jean's income other than from trust $68,080
Jean's total living expenses 65.864
Jean's surplus income $ 2,216
. Distribution from trust in excess of Jean's needs $55,000
2001: Distribution to Jean from Loy T. Hempt Trust $100,000
Jean's income other than from trust $70,705
Jean's total living expenses 61.250
. Jean's surplus income $ 9,455
Distribution from trust in excess of Jean's needs $100.000
Total Distribution from Loy T. Hempt Trust
to Jean $315,500
. Jean's Total Surplus Income 78,573
Total Excess Distributions from Loy T. Hempt Trust $315,500
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84. Assets of the Loy T. Hempt Residuary Trust include two thousand one
hundred thirty-two (2,132) shares of stock in Hempt Brothers, Inc., a closely-held
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family business. (Kalbach Ex. 1, Stipe 17).
85. Assets of the Loy T. Hempt Residuary Trust include six thousand
. (6,000) shares of stock in C.A. Hempt Estate, Inc., a closely-held family business.
(Kalbach Ex. 1, Stipe 19).
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86. Assets of the Loy T. Hempt Residuary Trust include eighty-nine (89)
shares of common stock in Valley Land Co. out ofa total of one hundred (100) shares
. of common stock of Valley Land Co. issued and outstanding, a closely-held family
business.5 (Kalbach Ex. 1, Stipe 19).
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87. The remaining eleven (11) shares of Valley Land Co. common stock are
owned by Gerald L. Hempt. (N.T.48).
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88. The primary asset of Valley Land Company is a 97 -acre parcel of
undeveloped land. (N. T. 49-50).
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89. Valley Land acquired that property in approximately 1957. (N.T.50).
. Ii Collectively, Hempt Brothers, Inc., Valley Land Company and C.A. Hempt Estate, Inc. are referred to
at times herein as the "family businesses."
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90. The property owned by Valley Land is not currently listed for sale
anywhere. (N.T.50).
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91. If the Loy T. Hempt Residuary Trust had not been divided, after the
death of Jean Doris Hempt the stock of Valley Land would be held as follows:
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Robert H. Kalbach, Sr.
Mark Brothers
Total Petitioners' Shares
17.8 shares
35.6 shares
53.4 shares
.
Gerald L. Hempt
Gerald L. Hempt Siblings
Hempt Family Shares
Total Shares
19.9 shares
26.7 shares
46.6 shares
100.0 shares
.
(Kalbach Ex. 1, Stips. 2, 20, Ex. A).
.
92. If the Loy T. Hempt Residuary Trust had not been divided, after the
death of Jean Doris Hempt the stock of C.A. Hempt Estate would be held as follows:
.
Robert H. Kalbach, Sr.
Mark Brothers
Total Petitioners' Shares
7,200.00 shares
5.257.14 shares
12,457.14 shares
.
Max Hempt Children's and
Widow's Shares 11.542.86 shares 11.542.86 shares
Total Shares 24,000.00 shares
.
(Kalbach Ex. 1, Stips. 2, 19, Ex. A).
23
.
.
.
93. The valuation of the stock of C.A. Hempt Estate by the purported
Trustee should have included a premium considering the fact that the 6,000 shares of
C.A. Hempt Estate owned by the Loy T. Hempt Trust constituted a controlling block
of stock as between the Hempt family interest on the one hand as opposed to the
combined interests of the Mark family and Robert H. Kalbach, Sr. on the other hand.
.
.
94. If the assets of the Loy T. Hempt Residuary Trust were divided
pursuant to the 40%-40%-20% formula provided by Loy T. Hempt, then the two sets
.
of Objectors, Robert H. Kalbach, Sr. and the Mark Brothers, would, upon
distribution, together own a majority interest of Valley Land Company and C.A.
· Hempt Estate, Inc. (Kalbach Ex. 1, Stipe 2, 19,20 and Ex. A).
95. By document dated April 25, 2002, Gerald L. Hempt, purported Trustee
.
of the Loy T. Hempt Residuary Trust, purported to divide the Loy T. Hempt
Residuary Trust into three (3) separate trusts, one for the benefit of the issue of Max
. Hempt, the second for the benefit of the issue of Dorothy Mark and the third for the
benefit of Robert H. Kalbach, Sr.. (Accounting pgs. 44(a), 44(b), 44(c), Kalbach
Exs. 15, 16).
.
.
24
.
.
.
96. Gerald L. Hempt received the advice of Robert L. Freedman, Esquire, to
divide and distribute the assets of the Loy T. Hempt Residuary Trust to the three
trusts. (Kalbach Ex. 8-16).
.
97. In a letter to Gerald L. Hempt and George F. Hempt dated March 1,
. 2001, Mr. Freedman advised that he had "done a preliminary analysis of the assets
held in the trust under Loy's Will to determine how the assets can be divided now
into separate trusts to reflect the eventual division after Jean's death according to
.
the terms of Loy's Will." (Kalbach Ex. 8).
. 98. In his March 1, 2001 letter, Mr. Freedman further stated, "It was not
possible to apportion all of the Hempt Bros. stock to you. It had to be divided among
you, your sisters and the Marks' family because it has a relatively high basis as
.
compared to the other assets." (Kalbach Ex. 8).
. 99. As of March 1,2001, Mr. Freedman's proposal to Gerald L. Hempt
contemplated that Robert H. Kalbach, Sr. would receive all 6,000 shares of the C.A.
Hempt Estate stock held in the Loy T. Hempt Residuary Trust. (Kalbach Ex. 8).
.
.
25
.
.
.
100. Mr. Freedman wrote again to Gerald L. Hempt on April 11, 2001 in
which he "reanalyzed" potential division of the assets held in the Loy T. Hempt
.
Residuary Trust. (Kalbach Ex. 10).
101. In his April 11, 2001 letter, Mr. Freedman wrote, "I also considered
. various other transactions in order to help you and George acquire greater positions
in some of your family's businesses." (Ex. 10).
.
102. In his April 11, 2001 letter to Gerald L. Hempt, Mr. Freedman wrote:
.
It is my understanding based on our meeting that you
want to increase your ownership in Valley Land Company
("Valley Land") from 11% (11 shares) to 51% (51 shares)
and in C.A. Hempt from 12.5% (3,000 shares) to 37.5%
(9,000 shares). This means you need to acquire an
additional 40 shares of Valley Land and an additional 6,000
shares of C.A. Hempt. At the same time, you and George
would like to ensure that Robert H. Kalbach, Sr. not
receive any additional shares of Hempt Brothers., Inc.
("Hempt Bros."). George wants to receive as many
additional shares of Hempt Bros. as possible.
.
.
(Kalbach Ex. 10).
.
103. In his April 11, 2001 letter to Gerald L. Hempt, Mr. Freedman stated,
"Therefore, it is impossible to get all of the Valley Land, Hempt Bros. and C.A.
. Hempt stock into the right hands as the assets are now." (Kalbach Ex. 10).
26
.
.
.
104. In his April 11, 2001 letter to Gerald L. Hempt, Mr. Freedman identified
six potential alternatives for division of the Loy T. Hempt Residuary Trust assets.
(Kalbach Ex. 10).
.
.
105. In his April 11, 2001 letter to Gerald L. Hempt, Mr. Freedman identified
that a "positive side" of his alternative number 1 was that Robert H. Kalbach, Sr.
would not receive shares of Hempt Brothers. (Kalbach Ex. 10).
.
106. With respect to alternative number 2 of Mr. Freedman's letter to Gerald
L. Hempt dated April 11, 2001, Mr. Freedman described the outcome as, "[W]e
. accomplish your goals of gaining 51% of Valley Land, getting George a significant
amount of Hempt Bros. stock and not giving Robert H. Kalbach, Sr. any additional
shares of Hempt Bros." (Kalbach Ex. 10).
.
.
107. In all of the allocation alternatives presented by Mr. Freedman to
Gerald L. Hempt on April 11, 2001, Robert H. Kalbach, Sr. would receive shares of
Valley Land or C.A. Hempt Estate or both. (Kalbach Ex. 10).
.
108. In a letter dated May 15, 2001, Mr. Freedman wrote to George F.
Hempt and Gerald L. Hempt proposing still another potential allocation of the assets
of the Loy T. Hempt Residuary Trust into three separate trusts. (Kalbach Ex. 12).
.
27
.
.
.
109. As of May 15, 2001, George Hempt was not a trustee of the Loy T.
Hempt Residuary Trust. (N.T.89).
.
110. In his May 15, 2001 letter to George F. Hempt and Gerald L. Hempt,
Mr. Freedman stated, "In dividing the assets, my two main goals were to have you
. receive equally the maximum number of Hempt Bros. shares as possible and not to
have any Hempt Bros. shares go to Robert H. Kalbach, Sr.." (Kalbach Ex. 12).
.
.
111. In his May 15, 2001 letter to Gerald L. Hempt and George F. Hempt,
Mr. Freedman further stated, "It is not possible to get a larger amount of Hempt
Bros. into your hands through a simple division of the Trust because of the different
ratios between basis and fair market value of each asset." (Kalbach Ex. 10).
.
112. The May 15, 2001 letter to George F. Hempt and Gerald L. Hempt from
Mr. Freedman enclosed a spreadsheet labeled on top "Maximum Shares of Hempt
Bros. to George & Gerald L. Equally." (Kalbach Ex. 10).
.
.
113. The spreadsheet attached to the May 15, 2001 letter to George F.
Hempt and Gerald L. Hempt from Mr. Freedman proposed that Robert H. Kalbach,
Sr. would receive twenty (20) shares of Valley Land Co. and one thousand three
hundred 0,300) shares ofC.A. Hempt Estate. (Kalbach Ex. 10).
28
.
.
.
.
114. In a separate letter dated May 15, 2001 addressed only to Gerald L.
Hempt, Mr. Freedman "did a revision ofa basic division of the trust with the goals of
you and George receiving equally the maximum number of shares of Hempt Bros.
and Robert H. Kalbach, Sr. not receiving any shares of Hempt Bros." (Kalbach Ex.
14).
.
.
115. The second letter of May 15, 2001, to Gerald L. Hempt, alone,
addressing division of the Loy T. Hempt Residuary Trust, was faxed to him only
.
seven minutes after Mr. Freedman had faxed his prior letter to both Gerald L. Hempt
and George Hempt. (Kalbach Exs. 12 and 14; N.T. 95-96).
.
.
116. In his revision set forth in the May 15, 2001 letter addressed only to
Gerald L. Hempt, Robert H. Kalbach, Sr. received six (6) shares of Valley Land stock
and one hundred (100) shares ofC.A. Hempt stock. (Kalbach Ex. 14).
.
117. In a letter dated April 23, 2002 to Gerald L. Hempt, Mr. Freedman
provided to Mr. Hempt a document to divide the Loy T. Hempt Trust into three
separate trusts and allocate assets among the three trusts. (Kalbach Ex. 15).
.
.
118. On April 23, 2002, Robert L. Freedman, Esquire, for the first time in his
valuation scenarios, used a value of $643.49 per share for the value of Hempt
29
.
.
.
Brothers, Inc. stock, which purportedly represented the book value of Hempt
Brothers, Inc. as of August 31,2001. (Kalbach Ex. 23; Hempt Ex. 5).
.
119. The use of book value for the division valuation of Hempt Brothers, Inc.
was erroneously pursuant to an agreement among the shareholders of Hempt
. Brothers, Inc. dated October 19, 1964. (Hempt Ex. 5; Hempt Ex. 6)
120. The Hempt Brothers, Inc. shareholder agreement existed as of 1964, but
.
book value was never utilized by Robert L. Freedman, Esquire in any of his trust
valuation scenarios until April 23, 2002. (Kalbach Ex. 8-16; Hempt Ex. 6).
.
.
121. The per share value for C.A. Hempt, Inc. utilized by Robert L.
Freedman, Esquire in his April 23, 2002 division documents was $104. (Kalbach
Ex. 15; N.T. 103-104).
.
122. Between April 11, 2001 and April 23, 2002, Robert L. Freedman,
Esquire had previously utilized a per share value of C.A. Hempt Estate, Inc. of either
$354.17 per share or $212.50 per share. (Kalbach Exs. 9-14).
.
123. In arriving at the valuation for C.A. Hempt Estate stock used in the
division and allocation of assets regarding the Lay T. Hempt Residuary Trust, Robert
.
30
.
.
.
L. Freedman, Esquire adjusted the appraised value to reflect both a minority interest
discount and a lack of marketability discount, combining for a discount of 51%.
(Kalbach Ex. 13; N.T. 128-129).
.
124. There is no evidence in the record before the Auditor that the discounts
. utilized by the purported Trustee in valuing the stock of C.A. Hempt Estate are in
fact appropriate and justified.
.
.
125. The per share value of Valley Land Company utilized by Robert L.
Freedman, Esquire in his April 23, 2002 trust division documents was $25,850.
(Kalbach Ex. 15).
.
126. Prior to April 23, 2002, Robert L. Freedman, Esquire had utilized a per
share value for Valley Land Company of $48,500 per share for his trust division
scenarios. (Kalbach Exs. 8-14).
.
.
127. The per share value utilized by Robert L. Freedman, Esquire for Valley
Land Company on April 23, 2002 utilized, for the first time in the valuation
scenarios, an assumption that the federal and state tax on the sale proceeds would be
45%. (Kalbach Ex. 15; N.T. 129-141).
.
31
.
.
.
128. In reducing the fair market value of Valley Land Company by 45% as
utilized in the April 23, 2002 trust division documents, Robert L. Freedman, Esquire
assumed that the property would be sold and that the built in tax consequences
would have to be considered. (N.T.129-131).
.
.
129. Valley Land Company has owned its undeveloped real estate assets
since approximately 1957 and has no current plans to sell the property. (N.T.48-
50).
.
.
130. In reducing the calculation of fair market value for the Valley Land
Company by 45%, Robert L. Freedman, Esquire assumed that Valley Land Company
would be taxed as a C Corporation. (N.T.130).
.
131. Valley Land Company elected S Corporation status for tax purposes in
approximately February, 2002. (N.T.130-132).
.
.
132. With respect to the valuation of Valley Land Co. utilized by Robert L.
Freedman, Esquire in the division and allocation of assets with respect to the Loy T.
Hempt Residuary Trust, Robert L. Freedman, Esquire applied a discount of 45% to
reflect what he believed to be tax consequences of a sale, even though the tax
.
32
.
.
.
consequences would only be triggered if Valley Land Co. sold its undeveloped real
estate assets in the next eight years. (Kalbach Ex. 15; N.T. 129-139).
.
133. The 45% reduction figure utilized by Robert L. Freedman, Esquire is
not an accurate figure. (N.T. 138-141)
.
134. The fair market value used by Gerald L. Hempt in allocating the assets
of the Loy T. Hempt Residuary Trust into three separate trusts is fundamentally
.
flawed and improper because the fair market value utilized for allocation of the
Valley Land Company stock is wrong; it should not be discounted 45% (or any other
.
percentage) for tax consequences of a hypothetical sale because
.
· Valley Land has already owned and held the
property itself for approximately 47 years;
· Valley Land has no current plan or intent to sell the
property;
· The 45% tax discount utilized by Mr. Freedman is
simply without foundation and is wrong.
.
(N.T. 138-141; 48-50; 214-228).
.
135. The values of the stock of the closely held family business owned by the
Lay T. Hempt Trust were arbitrarily determined by Robert L. Freedman, Esquire
without any evidence to support the value assigned to each block of stock as follows:
.
33
.
.
.
"The value of Allied Irish Banks is the closing price on
Monday, April 22, 2002.
.
The value of Hempt Brothers is in accordance with the
buy/sell agreement, which is book value as of some months
ago.
The value of the C.A. Hempt Estate is the medium range of
the values that I did about a year ago.
.
The value of Valley Land Company is based on the new
appraisal of $4.7 million for the real estate, and assuming
it has a nominal basis and assuming that the federal and
state tax on the sale proceeds would be 45%, and assuming
further that there are no other assets of significance in
Valley Land. Let me know if any of these assumptions is
wrong. "
.
.
(Kalbach Ex. 15).
136. In the allocation proposed on April 23, 2004, Robert H. Kalbach, Sr. did
.
not receive any shares of Hempt Brothers, Valley Land or C.A. Hempt Estate.
(Kalbach Ex. 15).
.
137. In a letter to Gerald L. Hempt dated July 12, 2002, Mr. Freedman sent
to Gerald L. Hempt a new document to supersede the document provided on April 23,
.
2002 because Mr. Freedman had mistakenly omitted the basis of Valley Land in the
prior document. (Kalbach Ex. 16).
.
34
.
.
.
138. In the July 12, 2002 letter to Gerald L. Hempt, Mr. Freedman wrote,
"As a result the division is changed slightly, as shown on the enclosed. Kalbach
.
continues to receive no family businesses." (Kalbach Ex. 16).
139. As a result of the final division of the Loy T. Hempt Residuary Trust
. performed by Gerald L. Hempt as Trustee, Robert H. Kalbach, Sr. received no
interest in Hempt Brothers, Valley Land or C.A. Hempt Estate. (Accounting pg.
44(c), Kalbach Ex. 16).
.
140. In his May 15, 2001 letter to George F. Hempt and Gerald L. Hempt,
. Mr. Freedman proposed a distribution of the stock in the family businesses owned by
the Loy T. Hempt Residuary Trust as follows:
. Asset Hempt Trust Mark Trust Kalbach Trust
Hempt Bros. Stock 1,100 1,023 0
Valley Land Stock 40 29 20
. C.A. Hempt Estate 2,500 2,200 1,300
Stock
(Kalbach Ex. 12).
.
.
35
.
.
.
141. In the final purported split and distribution of assets owned by the Loy
T. Hempt Residuary Trust by the purported Trustee on April 25, 2002, the
.
distribution of the family business stock was as follows:
Asset Hempt Trust Mark Trust Kalbach Trust
. HemDt Bros. Stock 1.328 795 0
Valley Land Stock 70 19 0
C.A. Hempt Estate 1,235 4,765 0
Stock
.
(Accounting Pgs. 44(a), 44(b), 44(c), Kalbach Ex. 16).
.
142. In determining the value of the shares of Hempt Brothers stock
allocated to the issue of Max Hempt and to the issue of Dorothy Mark, Gerald L.
Hempt used the book value of the Hempt Brothers stock as of August 31,2001,
.
purportedly justified by a shareholder agreement dated October 19, 1964. (Kalbach
Ex. 15; Kalbach Ex. 16; Hempt Ex. 5).
.
143. Gerald L. Hempt allocated no stock of Hempt Brothers, C.A. Hempt
Estate and Valley Land Co. to Robert H. Kalbach, Sr. because of his belief that
.
Robert H. Kalbach, Sr. has been "hostile" to the family members running those
businesses, and such hostility bodes ill for the future smooth management of those
.
36
i
I
.
.
.
family companies should Robert H. Kalbach, Sr. become a stockholder. (N.T.I09-
110; Trustee's Reply to Objections, pg. 17 and 21).
.
144. As of March 1,2001, Gerald L. Hempt had told Robert L. Freedman,
Esquire that his goal was, if possible, to apportion all of the Hempt Brothers' stock in
. the Loy T. Hempt Residuary Trust to him and his brother, George. (N.T.72).
145. In contemplating division of the Lay T. Hempt Residuary Trust into
.
three trusts and allocating assets among the three trusts, Gerald L. Hempt was
concerned that if Robert H. Kalbach, Sr. became a minority shareholder in Hempt
. Brothers, Inc. that Hempt Brothers, Inc. would be threatened in its ability to bid
projects and in bonding situations and that the company proprietary information
could be compromised. (N.T.259-260).
.
.
146. Gerald L. Hempt wanted to use the division of the Loy T. Hempt
Residuary Trust into three trusts, and the allocation of assets among those trusts, to
increase his personal holdings of Hempt Brothers, Inc., Valley Land Company and
C.A. Hempt Estate, Inc. (N.T. 78-80; Kalbach Exs. 8-16).
.
.
37
.
.
.
147. It was Gerald L. Hempt's goal in dividing the Lay T. Hempt Residuary
Trust and allocating its assets among three trusts that Robert H. Kalbach, Sr. not
receive any stock in Hempt Brothers, Inc. (N.T. 80; Kalbach Exs. 8-16).
.
.
148. At the 2001 annual meeting of C.A. Hempt Estate, Inc., Robert L.
Freedman, Esquire, at the request of Gerald L. Hempt, presented information about
a buy-sell agreement for the corporation. (N.T.66).
.
149. The 2001 annual meeting of C.A. Hempt Estate, Inc. occurred sometime
after May 15, 2001. (N.T. 91; Kalbach Ex. 12).
.
.
150. Gerald L. Hempt believed that Robert L. Freedman was acting on behalf
of the Loy T. Hempt Estate when he presented information about a buy-sell
agreement at the 2001 annual meeting ofC.A. Hempt Estate, Inc. (N.T.66).
.
151. Robert H. Kalbach, Sr. and at least one of the Mark brothers attended
the 2001 annual meeting of the shareholders of C.A. Hempt Estate, Inc. (N. T. 70-
71).
.
.
38
.
.
.
152. Neither Robert L. Freedman, Esquire nor Gerald L. Hempt discussed
division of the Loy T. Hempt Residuary Trust at the annual meeting ofC.A. Hempt
Estate, Inc. in 2001. (N.T.64-66).
.
.
153. When Robert L. Freedman, Esquire prepared the Buy-Sell Agreement
for C.A. Hemp Estate, Inc. and attended the 2001 meeting ofC.A. Hempt Estate, Inc.,
he did not disclose to the other shareholders that he was also representing the Loy T.
Hempt Residuary Trust with respect to a potential trust division and allocation of
assets. (N.T. 141-143).
.
. 154. Planning between Gerald L. Hempt and Robert L. Freedman, Esquire
for division of the Loy T. Hempt Residuary Trust had taken place before the 2001
annual meeting ofC.A. Hempt Estate, Inc. (N.T. 67-68; Kalbach Ex. 8).
.
.
155. Gerald L. Hempt had addresses for all of the Loy T. Hempt Residuary
Trust beneficiaries as of March, 2001. (N. T. 70).
.
156. Nothing would have prevented Gerald L. Hempt from contacting the
residual beneficiaries of the Loy T. Hempt Residuary Trust about the possible
division of the Loy T. Hempt Residuary Trust. (N.T.70).
.
39
:.
.
.
157. Gerald L. Hempt and Robert L. Freedman, Esquire could have discussed
the division of the Lay T. Hempt Residuary Trust at the 2001 annual meeting of C.A.
Hempt Estate, Inc., but did not do so. (N.T.71).
.
.
158. Robert H. Kalbach, Sr. was never consulted by Gerald T. Hempt, Robert
L. Freedman, Esquire, or anyone else, about division of the Loy T. Hempt Residuary
Trust or what assets he might want allocated to him (N.T.25-26).
.
159. Robert Mark is also an objector in these proceedings. (N.T.144).
.
160. Prior to receiving a copy of the first and final account of the Estate of
Lay T. Hempt, Robert Mark was never consulted by Gerald L. Hempt or any attorney
or other individual representing Gerald L. Hempt with respect to the creation of
three separate trusts from the Loy T. Hempt Residuary Trust. (N.T.146).
.
.
161. Prior to the filing of the first and final account of the Estate ofLoy T.
Hempt, Robert Mark was never consulted by Gerald L. Hempt or any attorney or
other representative of Gerald L. Hempt concerning what assets of the Loy T. Hempt
Residuary Trust he would like to receive. (N.T.146).
.
.
40
.
.
.
162. The division of the Lay T. Hempt Residuary Trust into three trusts was
done confidentially among Gerald L. Hempt, George Hempt and Robert L. Freedman,
Esquire and was deliberately not discussed with any of the other residual
beneficiaries. (Kalbach Exs. 8-16; N.T. 68-72).
.
.
163. As of March 1, 2001, it was Gerald L. Hempt's goal that if possible all of
the Hempt Brothers' stock in the Loy T. Hempt Residuary Trust would be
apportioned to him and his brother, George. (N.T.72).
.
164. An express reason why Robert L. Freedman, Esquire thought it was
. appropriate to allocate as much of the Hempt Brothers' stock to the separate Hempt
Trust was that George Hempt, the President, and Gerald L. Hempt, the
Secretary/Treasurer, thought it was appropriate and Mr. Freedman agreed. (N.T.
.
281).
.
165. Robert L. Freedman, Esquire thought it was appropriate to allocate as
much of the Hempt Brothers' stock as possible to the separate Hempt Trust and not
to the separate Kalbach Trust was because Kalbach was a competitor, relations had
not been easy between the two families and there were trade secrets involved. (N. T.
281).
.
.
41
.
.
.
166. Some of the trust division scenarios presented to Gerald L. Hempt by
Robert L. Freedman, Esquire included provisions where Gerald L. Hempt would buy
stock, personally, from the Lay T. Hempt Residuary Trust before dividing the trust.
(Kalbach Ex. 10; N.T. 80-81).
.
.
167. Gerald L. Hempt treated all of Robert L. Freedman, Esquire's legal
services reflected in his letters written to Gerald L. Hempt between April, 2001 and
July, 2002 as legal services performed on behalf of the Loy T. Hempt Estate and were
paid by the Loy T. Hempt Estate. (N.T.I08).
.
.
168. The amount of the legal fees paid to Robert L. Freedman, Esquire's law
flrm, Dechert, by the Loy T. Hempt Estate for the period January, 2001 through
May, 2002, was $41,215.31. (Accounting Pgs. 28-30).
.
.
169. In writing the letters that comprise Exhibits 8 through 16, Robert L.
Freedman, Esquire's client was, typically, the Loy T. Hempt Residuary Trust,
speaking through its Trustee, Gerald L. Hempt. (N.T. 123-124).
.
170. In any matter in which there was contemplation that Gerald L. Hempt,
personally, would purchase stock from the Loy T. Hempt Residuary Trust, Robert L.
Freedman, Esquire's client was Gerald L. Hempt, individually. (N.T. 123-128).
.
42
.
.
.
171. In at least the following instances, Robert L. Freedman, Esquire was
simultaneously representing the Loy T. Hempt Residuary Trust and Gerald L.
.
Hempt, individually, a beneficiary of the Loy T. Hempt Residuary Trust, with respect
to the issues of division of the Loy T. Hempt Residuary Trust and allocation of Trust
assets among the three divided Trusts:
.
.
· Letter of April 11, 2001. (Kalbach Ex. 10).
· Letter of May 7, 2001. (Kalbach Ex. 11).
· Letter of May 15, 2001 (to Gerald L. Hempt only).
(Kalbach Ex. 14).
172. With respect to Alternative 4 on Page 4 of the April 11, 2001 letter
.
(Kalbach Ex. 10), Robert L. Freedman, Esquire cannot even identify who his client
is. (Kalbach Ex. 10; N.T. 126).
.
173. With respect to Alternative 5 on Page 5 of the April 11, 2001 letter
(Kalbach Ex. 10), Robert L. Freedman, Esquire does not know whether he
.
considered C.A. Hempt Estate, Inc. to be his client or not. (Kalbach Ex. 10; N.T.
127).
.
174. With respect to Alternative 6 on Page 5 of the letter of April 11, 2001
(Kalbach Ex. 10), Robert L. Freedman, Esquire cannot identify who his client was
.
with respect to that Alternative. (Kalbach Ex. 10; N.T. 127).
43
.
.
.
175. In his letter of May 15, 2001 to George Hempt and Gerald L. Hempt
(Kalbach Ex. 12), Robert L. Freedman, Esquire represented, at a minimum, the Loy
T. Hempt Residuary Trust, Gerald L. Hempt, individually, and C.A. Hempt Estate,
Inc. In that same letter, Robert L. Freedman, Esquire is also providing advice to
George Hempt on how George Hempt could reach his goals through a division of the
Lay T. Hempt Residuary Trust. (Kalbach Ex. 12; N.T. 141-142).
.
.
.
176. At some point before September 27,2001, the date of the Compass
valuation report, Robert L. Freedman, Esquire was also acting as legal counsel to
Hempt Brothers, Inc. and providing legal advice to it. (N.T.359).
.
177. John F. Stoner is a practicing CPA employed by the accounting and
consulting firm Kuntz Lesher in Lancaster, Pennsylvania, where, among other
.
functions, he is in charge of the firm's business valuation and litigation support
department. (N.T.162-163).
.
178. Mr. Stoner is a Certified Valuation Analyst (CV A), having received that
designation in 2001. (N.T.164).
.
.
179. John S. Stoner is an expert in the area of business valuations. (N.T.
162-166).
44
.
.
.
180. Mr. Stoner was retained by Robert H. Kalbach, Sr. to value the stock
shares of Hempt Brothers, Inc. on a minority interest basis as of February 28, 2002,
an engagement that he felt qualified to perform on the basis of his training and
experience. (N.T. 188-187).
.
.
181. Mr. Stoner valued Hempt Brothers, Inc. as of February 28, 2002
because that date was the end of the company's fiscal year nearest to the time that
the assets of the Lay T. Hempt Trust were split into three separate trusts; both
experts, Mr. Stoner and Trustee's expert, Gabriel Nagy, agree that it is preferable to
utilize end-of-year fmancial information if possible because that is the most .
appropriate cut-off of information from year-to-year and contains audited numbers.
(N.T. 187; 338).
.
.
.
.
182. A February 28, 2002 valuation date is the most appropriate valuation
date to utilize for Hempt Brothers, Inc. in light of the trust division date of April 25,
2002. (N.T. 187; 338).
.
183. Mr. Stoner performed his valuation work in accordance with the
valuation standard set up by the National Association of Valuation Analysts. (N. T.
188-189).
.
45
.
.
.
184. Mr. Stoner used appropriate methodology in evaluating the stock of
Hempt Brothers, Inc. (N.T. 162-600; Kalbach Ex. 17).
.
185. Hempt Brothers, Inc. owns a significant amount of non-operating
assets, that is, assets owned by the corporation that are not currently used in the
. generation of operating income and normal activities of the business. (N. T. 173;
Kalbach Ex. 17).
.
186. The equity value of Hempt Brothers, Inc. as of February 28, 2002 was
$34,474,000.00. (N.T. 162-180; Kalbach Ex. 17).
.
187. The Hempt Brothers, Inc. value of $34,474,000.00 is appropriately
discounted 35% for lack of marketability. (N.T. 180-181; Kalbach Ex. 17).
.
.
188. The Hempt Brother, Inc. Shareholder Agreement is not determinative
of current fair market value for Hempt Brothers, Inc. because Hempt Brothers, Inc.
does not have a call provision. in the Agreement (Le., it is an option in the hands of
the shareholder; Hempt Brothers, Inc. cannot decide itself when to redeem shares), it
does not account for any potential for Hempt Brothers, Inc. to either sell its business
or sell components of its business, it does not account for potential future payment of
dividends (which could be desirable in the future to avoid an accumulated earnings
.
.
46
.
.
.
tax at the corporate level and could also be desirable because the dividend tax rate
has been reduced to 15%), and it did not account for a possible change in the
Shareholder Agreement by a future shareholder group. (N.T. 180-192; Kalbach
Ex. 17).
.
.
189. The book value formula set forth in the Shareholder Agreement is
further not determinative of current fair market value since the book value and
business operations have changed since the Agreement was entered into 38 years
prior to the valuation date, tangible assets which have been depreciated for book
purposes have appreciated considerably, and the Company's large real estate holdings
have a value significantly higher than their book values. Further, there was a failure
to seek professional advice in selecting the formula price, there was failure to obtain
and rely on appraisals in selecting the formula price, there was exclusion of
significant assets from the formula price, there was no provision for a periodic review
of the formula price and the formula value does not bear a reasonable relationship to
fair market value. (N.T. 180-192; Kalbach Ex. 17, pgs. 21-22).
.
.
.
.
.
190. Under the Hempt Shareholder Agreement, the corporation has no right
to require a shareholder to sell its shares or redeem its shares unless triggered by a
shareholder's desire to sell the shares to someone else. (Hempt Ex. 6; N.T. 360).
.
47
.
.
.
191. Under the Hempt Brothers, Inc. Shareholders' Agreement, there is no
obligation that a shareholder sell his shares back to the corporation upon the death of
the shareholder. (Hempt Ex. 6; N.T. 360-361).
.
.
192. Under the Hempt Brothers, Inc. Shareholders' Agreement, a
shareholder is free to transfer his shares to another family member by gift without
offering the shares to the corporation fIrst. (Hempt Ex. 6; N.T. 361).
.
193. The Internal Revenue Service is not bound by the formula price set
forth in a shareholder's agreement, for federal estate tax purposes and for federal gift
. tax purposes, when valuing stock in closely-held family businesses. (N.T.365-367).
.
194. It is appropriate in calculating the fair market value of Hempt Brothers,
Inc. to include in the Earnings Before Interest, Taxes, Depreciation and Amortization
("EBITDA") calculation income gain on sale of property and equipment, since Hempt
Brothers, Inc. has a consistent and ongoing income history in this category. (N.T.
193-195; Kalbach Ex. 17).
.
.
195. Gabriel Nagy of Compass Capital Partners met with George Hempt and
Gerald L. Hempt at the request of Robert L. Freedman, Esquire regarding the
.
48
'.
.
.
valuation of Hempt Brothers, Inc. because they had in mind an offer to a shareholder
to buy him out. (N.T. 311; Hempt Ex. 5, pg. 1).
.
196. Robert L. Freedman, Esquire was the attorney for Hempt Brothers, Inc.
that advised Hempt Brothers, Inc. and, in turn, Mr. Nagy, that its shares were
. subject to the Shareholders' Agreement. (N.T.359).
197. Gerald L. Hempt's expert witness, Mr. Nagy, recognized that if Hempt
.
Brothers, Inc. purchased its shares from a shareholder at book value, it would be an
"absolute bargain." (N.T.327-328).
.
.
198. Mr. Nagy considers the opportunity of Hempt Brothers, Inc. to buy
shares at book value under the Shareholders' Agreement to be extremely attractive
to the other shareholders who stay on because the book value of Hempt Brothers,
Inc. is lower than the fair market value of the net assets. (N.T.372-373).
.
.
199. Although Mr. Nagy determined the total fair market value of Hempt
Brothers, Inc. at August 31,2001 to be $6,440,000 (which is also book value), he
recognized that the fair market value of the non-operating assets alone is $7,300,064,
almost $1,000,000 more than he opined the entire company was worth. (Hempt Ex.
5, particularly Compass Ex. 8.3).
.
49
.
.
.
200. Mr. Nagy's discount of the notes receivable to present value is improper
since the corporation should be receiving an income stream from interest on those
notes. (N.T. 379-381).
.
.
201. Gerald L. Hempt's expert, Mr. Nagy, recalculated the fair market value
of Hempt Brothers, Inc., (the book value calculation which assumes the shareholders'
agreement is applicable) as of February 28,2002, less than two months before the
effective date of the trust division, and determined the value to be $790. (Hempt
Ex. 7; N.T. 336).
.
. 202. The fair market value used by Gerald L. Hempt in allocating the assets
of the Loy T. Hempt Residuary Trust into three separate trusts is fundamentally
flawed and improper, even assuming that book value of Hempt Brothers is the
.
appropriate fair market value. Gerald L. Hempt used a value of $643 per share, the
book value as of August 31, 2001, even though the Trust was not divided until April
. 25, 2002 and even though the book value of Hempt Brothers, Inc. at the end of its
fiscal year on February 28, 2002 was $790 per share. (Hempt Ex. 7; Kalbach Ex.
16).
.
203. If the book value calculation does not represent fair market value,
. Gerald L. Hempt's own expert, Mr. Nagy, calculated fair market value of a share of
50
.
.
.
Hempt Brothers, Inc. as of February 28,2002 to be $1,499 per share. (Hempt Ex. 7,
pg. 3).
.
204. Valuation is not an exact science and two different qualified appraisers
could use different methodologies and arrive at different conclusions. (N.T.368).
.
.
205. The various assumptions and methodologies that can be utilized by
different qualified valuation experts, particularly when the results at different
valuation dates can differ dramatically, render calculation of fair market value for
purposes of a trust division under 20 Pa. C.S.A. ~7191 unreasonable and improper.
(Kalbach Ex. 17; Hempt Ex. 5; Hempt Ex. 7; N.T. 162-230,301-378,379-390).
.
.
206. Gerald L. Hempt's expert, Mr. Nagy, agreed with John S. Stoner that
since the trust division took place in April of 2002, the closest numbers available for
value analysis were the fiscal year end 2002 numbers, which generated audited
financial statements. (N.T.338).
.
.
207. Gerald L. Hempt's expert, Mr. Nagy, recalculated and updated his total
of Hempt Brothers, Inc. non-operating assets as of February 28, 2002. He concluded
that the non-operating asset value of Hempt Brothers, Inc. as of February 28, 2002
was $8,781,295. (This number is derived from his adjustment of the Kuntz Lesher
.
51
.
.
.
figure of $11,022,310 from page 14 of Kalbach Ex. 17 by $2,241,015, which appears at
page 7 of Hempt Ex. 7). (Hempt Ex. 7; N.T. 343-346).
.
208. Mr. Stoner originally calculated a share of Hempt Brothers common
stock on a minority interest basis on February 28, 2002 to be $2,239.00 per share.
. (N.T. 198; Kalbach Ex. 17).
209. Even adjusting Mr. Stoner's calculated per share value of Hempt
.
Brothers, Inc. stock by eliminating the non-operating assets of the Walter & Quarry
and Birch Farm, and adding in the extra airplane value, would reduce Mr. Stoner's
. conclusion as to the fair market value of a share of Hempt Brothers, Inc. stock on
February 28,2002 from $2,239 per share to $2,146 per share. (N.T. 387; Kalbach
Ex. 17).
.
210. A share of Hempt Brothers' common stock on a minority interest basis
. on February 28,2002, assuming the adjustments at trial are appropriate, is $2,145
per share.
.
211. As a normal part of John S. Stoner's accounting services for clients, he
regularly deals with the federal tax consequences and Pennsylvania corporate net
income tax consequences ofland sales. (N.T.214-215).
.
52
.
.
.
212. Mr. Stoner also routinely deals with the consequences ofland sale
transactions within a C Corporation, as opposed to those same transactions within an
S Corporation. (N.T.215).
.
.
213. Even if a reduction in the value of Valley Land Co. is appropriate
because of the tax consequences of a sale within a C Corporation, the blended federal
and state rate that would make up the reduction is 40.6%, not 45%. (N.T.220-222).
.
.
214. When a Corporation elects S Corporation status, there is a ten-year
window during which, if the company sells assets that were appreciated assets at the
time of the S election, the built-in gain would be taxed as if it were a C Corporation.
After the ten-year holding period, the built-in gains would not be taxed at the
corporate level but would flow through and be taxed at the individual tax rates in
effect at the time. (N.T.221-222).
.
.
215. If an asset with built-in gains were sold by an S Corporation under
current tax rates, the tax consequences of the sale to the shareholder would be
somewhat less than 18% of the gain. (N.T.224-226).
.
.
216. One of the reasons that Gerald L. Hempt split the Loy T. Hempt
Residuary Trust into three trusts when he did was that the stock values of Allied
53
.
.
.
Irish, an asset of the Trust, had been going higher and the bank. had been merged.
He was aware of a lot of concern in the local community about the viability of that
stock in the future. (N.T. 273-274).
.
.
217. Gerald L. Hempt allocated no Allied Irish bank. stock to the separate
Hempt Trust in his trust division. (Kalbach Ex. 16).
.
218. Gerald L. Hempt allocated 41,239 shares of Allied Irish Bank. stock to
the separate Kalbach Trust, representing $1,040,872 in fair market value of the total
$1,396,382 allocated to the Kalbach Trust. (Kalbach Ex. 16).
.
.
219. In his allocation of assets among the three Trusts created from the
division of the Loy T. Hempt Residuary Trust, 75% of the total fair market value of
assets assigned by Gerald L. Hempt to the separate Kalbach Trust consisted of shares
of Allied Irish Bank. stock, distributed at a time when Mr. Hempt was aware of
concerns in the local community about the viability of that stock in the future.
(Kalbach Ex. 16; N.T. 274).
.
· 220. Gerald L. Hempt allocated 45,685 shares of Allied Irish Bank. stock to
the separate Mark Trust, representing $1,102,609 of fair market value of the total
.
54
.
.
.
$2,792,764 of fair market value allocated to the separate Mark Trust. (Kalbach Ex.
16).
.
221. Of the total assets allocated by Gerald L. Hempt to the separate Mark
Trust, approximately 40% of the fair market value consists of Allied Irish Bank stock,
. distributed at a time when Gerald L. Hempt was aware of concerns in the local
community about the viability of that stock in the future. (Kalbach Ex. 16; N.T.
274).
.
222. Based on the actual values of the shares of stock in the closely held
. family businesses before the unjustified and arbitrary discounts used by Robert L.
Freedman, Esquire were applied, the Hempt Family Trust acquired assets after the
division having a value of $4,600,000, calculated as follows, using Trustee's expert
.
witness as to Hempt Brothers as of August 31,2001:
. Cash $ 270
70 shares of Valley Land Co. at $47,000 @ 3,290,000
1,328 shares Hempt Bros., Inc. at $789.61 * 1,048,602
. 1,235 shares C.A. Hempt Estate, Inc. at
$211.44 (net asset value per share using
appraisal values of real estates) 261.128
$4,600,000
.
55
.
.
.
*Trustees expert, Hempt Ex. 5, before a discount to book value.
.
223. Based on the actual values of the shares of stock in the closely held
family businesses before the unjustified and arbitrary discounts used by Robert L.
Freedman, Esquire were applied, the Mark Family Trust acquired assets after the
. division having a value of $3,822,732, calculated as follows, using Trustee's expert
witness as to Hempt Brothers as of August 31,2001:
.
Cash and Miscellaneous
.
19 shares of Valley Land Co. at $47,000@
$ 191,871
1,102,609
893,000
627,740
Allied Irish Banks
.
795 shares Hempt Bros., Inc. at $789.61 *
4,765 shares C.A. Hempt Estate, Inc. at
$211.44 (net asset value per share using
appraisal values of real estate)
1.007.512
$ 3,822,732
.
*Trustee's expert, Hempt Ex. 5, before a discount to book value.
.
224. Based on the actual value of the shares of stock in the family owned
businesses before the arbitrary and unjustified discounts used by Robert L.
Freedman, Esquire and using Trustee's appraisal as to Hempt Brothers as of August
.
31,2001, the division allocated the value of the assets as follows:
56
.
.
.
Hempt Family Trust
Mark Family Trust
Kalbach Family Trust
$4,600,000
3,822,732
1.396.392
$ 9,219,114
.
225. Based on the actual value of the shares of stock in the closely held
.
family businesses before the unjustified and arbitrary discounts used by Robert L.
Freedman, Esquire, were applied, the Hempt Family Trust acquired assets after the
division having a value of $6,524,790, calculated as follows, using Objectors' expert
. witness as to Hempt Brothers:
.
Cash
70 shares of Valley Land Co. at $47,000 @
$
270
3,290,000
1,328 shares Hempt Bros., Inc. at $2,239 @* 2,973,392
.
1,235 shares C.A. Hempt Estate, Inc. at
$211.44 (net asset value per share using
appraisal values of real estates)
261.128
$6,524,790
. *Value determined by Objectors' expert appraiser, John S. Stoner at Kalbach Ex. 17.
226. Based on the actual values of the shares of stock in the closely held
.
family businesses before the unjustified and arbitrary discounts used by Robert L.
Freedman, Esquire were applied, the Mark Family Trust acquired assets after the
,.
57
.
.
.
division having a value of $4,974,997, calculated as follows, using Objectors' expert
witness as to Hempt Brothers:
.
Cash and Miscellaneous
$ 191,871
1,102,609
893,000
1,780,005
.
Allied Irish Banks
19 shares of Valley Land Co. at $47,000@
.
795 shares Hempt Bros., Inc. at $2,239@*
4,765 shares C.A. Hempt Estate, Inc. at
$211.44 (net asset value per share using
appraisal values of real estate)
1.007.512
$ 4,974,997
.
*Value determined by Objectors' expert appraiser, John S. Stoner at Kalbach Ex. 17.
.
227. Based on the actual value of the shares of stock in the family owned
businesses before the arbitrary and unjustified discounts used by Robert L.
Freedman, Esquire and using Objectors' appraisal as to Hempt Brothers as of August
.
31, 2001, the division allocated the value of the assets as follows:
.
Hempt Family Trust
Mark Family Trust
Kalbach Family Trust
$6,524,790
4,974,997
1.396.382
$12,897,164
.
58
I.
.
.
228. One of the reasons Robert L. Freedman, Esquire decided that the time
was appropriate to divide the Loy T. Hempt Residuary Trust into three trusts is
.
because he believed that Robert H. Kalbach, Sr. would question the action, so it
might as well be put before the Court. (N.T.283-284).
.
229. Robert L. Freedman, Esquire testified that one of the reasons, and
probably the primary reason, that he felt the timing was appropriate to divide the
.
Loy T. Hempt Residuary Trust into three separate trusts was because Robert H.
Kalbach, Sr. had raised questions about the attempt to petition the Orphans' Court
for permission to make gifts from the Jean Doris Hempt Estate, and he thought
· Robert H. Kalbach, Sr. would also raise questions about the trust division. As a
matter of fact, however, the planning between Gerald L. Hempt and Robert L.
.
Freedman, Esquire for dividing the Loy T. Hempt Residuary Trust had started
months before the Petition to Make Gifts was filed and months before Mr. Kalbach
questioned that effort. (N.T.282-286).
.
230. Robert L. Freedman, Esquire, who also represented Gerald L. Hempt,
personally and who also represented Hempt Brothers, Inc., advised Gerald L. Hempt,
.
Trustee of the Loy T. Hempt Residuary Trust, that he should divide the Trust
because George Hempt and Gerald L. Hempt, officers of the family companies
. involved, had told him that they thought it would be better for those companies if the
59
I.
,
.
.
division were done in such a way that Robert H. Kalbach, Sr. received none of the
family businesses and that the Hempt brothers, who were running those companies,
and were also individual residuary beneficiaries of the Lay T. Hempt Residuary
Trust, received as much of the stock as possible. (N.T. 287-288; 123-128; 359).
.
.
231. In providing his advice to Gerald L. Hempt, Trustee of the Lay T.
Hempt Residuary Trust, Robert L. Freedman, Esquire received and relied upon
information, and sought to implement the wishes of, only two of the individual
residual beneficiaries of the Trust, Gerald L. Hempt and George Hempt, while utterly
failing to consult with, seek input from, or determine the preferences of residual
· beneficiaries Robert H. Kalbach, Sr. or the Mark Brothers. (N.T. 272, 146,25-26).
.
.
232. Except for $270, the assets allocated by Gerald L. Hempt to the separate
Hempt Trust consist of entirely illiquid assets, meaning that the assets would be very
difficult to sell and would take a long time to sell, or as a practical matter, may even
be unsaleable for any reasonable price. (Kalbach Ex. 17; N.T. 291-293).
.
.
233. If it were necessary or desirable for the Lay T. Hempt Residuary Trust,
(now three separate trusts) to distribute money to Jean Doris Hempt, that money
would necessarily have to come disproportionately and disparately from the separate
.
60
.
.
.
Kalbach Trust and the separate Mark Trust because the separate Hempt Trust is
entirely illiquid. (Kalbach Ex. 17; N.T. 291-293).
.
234. The Reply filed by Trustee in response to the Objections filed by the
Objectants, Robert H. Kalbach, Sr. and the Mark brothers, in three (3) instances
. openly discloses and admits the self-dealing and the conflict of interest on the part of
the Trustee in the division of the Loy T. Hempt Residuary Trust as follows:
.
Page 17
.
"Trustee believed that all parties would benefit from
the trust division. The trustee did not distribute any stock
of the family businesses to the new trust for Kalbach and
his issue because those businesses have been managed by
the Max Hempt family, not by the Kalbach family, and
relations between the two families have not been easy. In
addition, the Kalbach family runs a business that competes
with Hempt Bros., Inc., the primary family business."
.
Pwre 31
.
"Trustee has been a shareholder of Hempt Bros.,
Inc. for 36 years and an employee, officer and director for
nearly as many years. Trustee has a genuine and valid
concern that Hempt Bros., Inc. not suffer from constant
disagreement among its shareholders. Objectants'
descriptions of Trustee's actions as "manipulative,"
"disingenuous" and "abusive" do not bode well for
Objectants ever being cooperative shareholders in a family
business managed by Trustee."
.
.
61
.
.
.
Pae:e 43
.
"The trust division benefits the Hempt family, the
Mark family and the Kalbach family. The Hempt family
benefits by not having a minority stockholder in the family
businesses with whom their relations have never been
easy. "
(Accounting Party's Reply to Objections).
.
235. The clear evidence of self-dealing and conflict of interest on the part of
. Gerald L. Hempt in planning and carrying out a division of the Loy T. Hempt Trust
for his own objectives vitiates the division under 20 Pa. C.B.A. ~7191 without regard
to whether the values used by Trustee in the division document of April 25, 2002
.
were appropriate.
.
236. The clear evidence of self-dealing and conflict of interest on the part of
Gerald L. Hempt is justification for the removal of Gerald L. Hempt as Trustee under
the Will of Loy T. Hempt.
.
.
.
62
.
.
.
Respectfully submitted,
METTE, EVANS & WOODSIDE
.
By: ~-1-~
Howell C. Mette, Esquire
Sup. Ct. I.D. No. 7217
Daniel L. Sullivan, Esquire
Sup. Ct. I.D. No. 34548
Vicky Ann Trimmer, Esquire
Sup. Ct. I.D. No. 49679
.
.
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
(717) 236-1816 - Fax
.
DATED: May 3, 2004
Attorneys for Kalbach Objectors
.
.
.
.
I
I
.
.
· CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document 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 at Harrisburg, Pennsylvania, with fIrst-class postage,
prepaid, as follows:
.
.
Ivo V. Otto III Esquire
MARTSON, DEARDORF,
WILLIAMS & OTTO
10 East High Street
Carlisle, PA 17013
.
Joel Zullinger Esquire
ZULLINGER & DAVIS
14 North Main Street
Suite 200
Chambersburg, P A 17201
.
.
.
.
DATED: May 3, 2004
395753vl
.
Donald Kaufman, Esquire
McNEES, WALLACE & NURICK
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Respectfully submitted,
By:
METTE, EVANS & WOODSIDE
\) " -\ ~ S-u---
Howell C. Mette, Esquire
Sup. Ct. I.D. No. 7217
Daniel L. Sullivan, Esquire
Sup. Ct. I.D. No. 34548
Vicky Ann Trimmer, Esquire
Sup. Ct.I.D. No. 49679
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
(717) 236-1816 - Fax
Attorneys for Kalbach Objectors