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HomeMy WebLinkAbout99-2765 EQUITY (Posttrial)ROBERT M. MUMMA, II, Plaintiff PENNSY SUPPLY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-2765 EQUITY TERM IN RE: PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF BEFORE OLER~ J. OPINION and FINAL DECREE OLER, J., July 29, 2002. In this equity action, Plaintiff Robert M. Mumma, II, who is presently proceeding pro se, requested a declaration that he retained an ownership interest in a corporation known as Pennsy Supply Inc. (with no comma), which, according to Plaintiff, "ha[d] survived for over fifty years as an entity separate and distinct from Pennsy Supply, Inc. (with a comma).''~ This claim was based on a share certificate, dating to 1963, which was held by Plaintiff and which facially represented shares in a corporation known as Pennsy Supply Inc. (with no comma). Plaintiff also requested a declaration that a 1961 shareholders' agreement, under which Plaintiff arguably had an option to purchase substantial assets presently operated by Pennsy Supply, Inc. (with a comma), represented an enforceable instrument.2 Following a five-day nonjury trial, the court found for Defendant.3 On May 28, 2002, Plaintiff filed a motion for post-trial relief in which Plaintiff identified numerous alleged errors in the court's adjudication of Plaintiff's case.4 Although the specific legal Op. & Decree Nisi, May 17, 2002, at 1. Hereinafter, all references to "Pennsy Supply, Inc." should be construed as references to Pennsy Supply, Inc. (with a comma), and all references to "Pennsy Supply Inc." should be construed as references to Pennsy Supply Inc. (with no comma). See Op. & Decree Nisi, May 17, 2002. Pl.'s Mot. for Post-Trial Relief, filed May 28, 2002 contentions in the motion are somewhat difficult to discern, owing to the prose style employed by Plaintiff, the following assignments of error may be extracted: 1. "The Court made findings which are clearly erroneous and not supported by substantial evidence that this case involves the sale of the 'Pennsy Supply business' to CRH." 2. "The Court made findings which are clearly erroneous and not supported by substantial evidence in determining Plaintiff's prior claims in other cases would require unraveling of the CRH transaction and allow Plaintiff to reacquire assets sold to CRH." 3. "The Court erred in finding that 'Plaintiffs claims are predicated on the legal significance of a comma or lack thereof.'" 4. "The Court erred in finding that the ownership interest represented shares in a 'corporation that was built up by Plaintiff' s father.'" 5. "The Court erred in opining that resolution of the Plaintiff's claim would require the unraveling of the sale of the 'Pennsy Supply businesses' and would allow Plaintiff to reacquire control of assets that were transferred to CRH plc by Plaintiff for consideration of $3 million." 6. "The Court erred in finding that 'Plaintiff also requested a determination that previous transfers of shares in Pennsy Supply Inc. were void under the terms of an agreement executed by the shareholders of Pennsy Supply Inc. in 1961 and that, pursuant to that agreement, Plaintiff has the option to purchase a significant ownership interest in that corporation at book value.'" 7. "The Court erred in finding that 'soon after executing this release, Plaintiff initiated lawsuits against various corporations involved in the transaction.'" 8. "The Court erred in finding that Plaintiff consented to this sale and released his interest in the 'Pennsy Supply businesses' for consideration of approximately $3 million." 2 9. "The Court erred in its findings of fact by relying on the records of the Commonwealth as 'conclusive proof and not the records maintained by the corporate secretary of Pennsy Supply Inc." 10. "The Court erred in determining that the December 29, shareholders agreement agreement .... " 11. "[The Court 1961 was terminated by the August 1, 1963 erred in not admitting and considering] a Dauphin Deposit bank memorandum.., that clearly shows that there were two Pennsy Supply companies co-existing in a parent-affiliate relationship." 12. "[T]he Court erred in not admitting PlaintifFs exhibit 22, the corporate records relating to Fiala, Inc." 13. "The Court [should] reconsider the Affidavit filed by Robert opposition to Defendant's Motion for Summary M. Mumma, II in Judgment." 14. "[The Court should review] the minutes of the special meeting of shareholders of Nine Ninety-Nine, Inc. held January 7, 1989."5 Briefs have been submitted and oral argument has been held on the issues presented in PlaintifFs motion. For the reasons stated in the accompanying opinion, Plaintiff s motion will be denied. STATEMENT OF FACTS The issues and facts of this case, which have been discussed in more detail in the underlying adjudication,6 may be summarized briefly as follows: 5 Pl.'s Mot. for Post-Trial Relief, filed May 28, 2002 (footnotes omitted). 6 Hereinafter, all references to the "underlying case," the "underlying opinion" or the "underlying adjudication" should be construed as references to the opinion and decree nisi entered by the court on May 17, 2002, that disposed of the claims raised in the PlaintifFs Action for Declaratory Judgment, filed May 7, 1999. 3 The first issue presented in the underlying case was whether Plaintiff's share certificate bearing the name "Pennsy Supply Inc." represented a valid ownership interest in an existing corporation.? According to the records of the Commonwealth, Pennsy Supply Inc., which issued Plaintiff's certificate, was incorporated in 1958.8 Although the records of the Commonwealth "inexplicably" insert a comma into Pennsy Supply Inc. between 1979 and 1981, turning "Pennsy Supply Inc." into "Pennsy Supply, Inc.," no officially recognized change in corporate name or identity occurred until 1982, at which time Pennsy Supply, Inc., changed its name to Nine Ninety-Nine, inc.9 At the time of the name change in 1982, Nine Ninety-Nine, Inc., cancelled all outstanding share certificates and issued replacement certificates bearing the new corporate name. Although Plaintiff retained his share certificate bearing the name "Pennsy Supply Inc.," that certificate no longer represented a valid interest in any corporation recognized by the Commonwealth. In 1995, Plaintiff consented to the sale of Nine Ninety-Nine, Inc., to another corporation, CRI-I plc, and surrendered the share certificate that represented his shares in Nine Ninety-Nine, Inc. However, Plaintiff still held his defunct share certificate bearing the name "Pennsy Supply inc.''~° The second issue presented in the underlying case was whether a 1961 shareholders' agreement, which purported to limit the ability of current shareholders to transfer shares without first offering these shares for sale to the corporation, represented an enforceable instrument.~ This agreement had been executed in 1961 by the shareholders in Pennsy Supply Inc., and share certificates issued after the date of the agreement bore a legend that identified the applicability of the restrictions imposed by it. 7 Pl.'s Action for Declaratory J., filed May 7, 1999, at 5. 8 The corporation was originally known as Fiala Crushed Stone Corporation, but its name was changed soon after incorporation to Pennsy Supply Inc. See Op. & Decree Nisi, May 17, 2002, at 3-6. 9 See id lo See id ~ Pl.'s Action for Declaratory J., filed May 7, 1999, at 5. 4 In 1963, the same shareholders executed a termination agreement, which provided that the restrictions imposed by the original agreement would not apply to subsequent share transfers. Soon after the execution of this termination agreement, Plaintiff was issued his share certificate, which did not bear the restrictive legend that had appeared on prior certificates. ~2 DISCUSSION With respect to Plaintiff's first seven assignments of error, as represented above, the court is of the opinion that Plaintiff has not raised any material allegation of error. When a party raises claims of error with respect to elements of a case that were not material to the court's disposition, it is proper to dismiss those claims as predicated upon harmless error. See, e.g., Snyder v. Gravell, 446 Pa. Super. 124, 128, 666 A.2d 341, 343 (1995). In the present case, the first seven claims do not allege errors in the court's findings of fact or conclusions of law, but object only to the language used to describe Plaintiff's case in the introductory section of the underlying opinion.~3 Because these background statements were not essential to the court's disposition of the underlying case, the assignments of error will be dismissed as based upon matters of harmless effect. With respect to Plaintiff's eighth assignment, that the court erred in determining that Plaintiff executed a sale and release of his interest in the "Pennsy Supply businesses" for $3 million, the court is of the opinion that the finding at issue was supported by the evidence presented in this case. In his testimony, Plaintiff stated that he had executed a consent and joinder for the assets collectively denominated as the "Pennsy Supply businesses," that he had signed over a share certificate representing his ownership interest in Nine Ninety-Nine, Inc., and that, upon doing so, a payment of approximately $3 million was made.~4 Further, prior opinions of this court, admitted into evidence in the current case, included the finding that Plaintiff had sold his ownership interest in Nine ~2 See Op. & Decree Nisi, May 17, 2002, at 3-6. ~3 Compare supra text accompanying note 5 with Op. & Decree Nisi, May 17, 2002, at 1- 2. ~4 See N.T. 170-76, Trial, Dec. 13-15, 2000, May 30-31, 2001 (hereinafter N.T. ~. 5 Ninety-Nine for consideration of $3 million,is Although Plaintiff denied knowledge of the nature of the transaction,16 the court was of the opinion that no credible evidence was offered to challenge the finding that such a transaction did, in fact, occur. Because the finding was supported by substantial evidence from the record, it can not be considered clearly erroneous. See MacKintosh-Hemphill Iht'l, Inc. v. Gulf& Western, Inc., 451 Pa. Super. 385, 402, 679 A.2d 1275, 1283 (1996).17 With respect to Plaintiff s ninth assignment, that the court "erred in its findings of fact by relying on the records of the Commonwealth," rather than on the "records maintained by the corporate secretary of Pennsy Supply Inc.," the court is of the view that the court's findings with respect to the identity of the issuing corporation of Plaintiff s share certificates were supported by substantial evidence. "In a bench trial, the trial court is free to believe all, part, or none of the evidence presented, to make all credibility determinations, and to resolve any conflicts in the evidence." Wallace v. Pastore, 742 A.2d 1090, 1094 (Pa. Super. Ct. 1999). In this case, Defendant presented evidence, in the form of the official articles of incorporation and amendments for Nine Ninety-Nine, Inc.,la that showed, to the court's satisfaction, a complete record of the 15 See Def.'s Ex. 47, Trial, Dec. 13-15, 2000, May 30-31, 2001 (hereinafter Pl.'s / Def.'s Ex. ~. 16 See, e.g., N.T. 170-72. 17 It also could be argued that PlaintifFs eighth assignment of error does not raise a material allegation of error. The underlying adjudication in this case was based primarily on the finding that, in 1982, the issuing corporation of PlaintifFs share certificate changed its name to Nine Ninety-Nine, Inc., cancelled all outstanding share certificates, and issued replacement certificates under the new corporate name. Accordingly, the court concluded that, as of 1982, PlaintifFs share certificate bearing the name "Pennsy Supply Inc." represented no valid ownership interest in any corporation recognized by the Commonwealth. See Op. & Decree Nisi, May 17, 2002, at 9. Because the eighth assignment of error relates only to transactions subsequent to 1982, it is arguably predicated upon harmless error. la See Def.'s Ex. 48. Pursuant to statutory requirements, the records had been filed with the Commonwealth of Pennsylvania Department of State. See id.; see a/so Op. & Decree Nisi, May 17, 2002, at 8. 6 incorporation and development of the issuing corporation. In its capacity as trier of fact, the court accorded the weight it felt appropriate to the testimony of Plaintiff's witnesses, who could only, in response to Plaintiff's leading questions, agree that two "Pennsy Supply" corporations may have existed at some time.~9 As such, the findings of fact relating to the issuing corporation's structure and development and based on the records of the Commonwealth can not be considered clearly erroneous. With respect to Plaintiff' s tenth assignment, that the court erred in finding that the shareholders' agreement had been terminated in 1963, the court is of the view that the finding was supported by the evidence presented in this case. At trial, the evidence tended to show that an agreement to restrict share transfers was executed by shareholders in Pennsy Supply Inc. in 1961,20 that share certificates issued after this date bore a restrictive legend identifying the applicability of the restrictions,2~ that a termination agreement was executed by the same shareholders in 1963,22 and that share certificates issued after that date -- including Plaintiff's certificate -- bore no such restrictive legend.23 During trial, Plaintiff offered no evidence to refute these conclusions, and, as such, the finding that the termination agreement rendered the shareholders' agreement of 1961 unenforceable with respect to the shares issued to Plaintiff can not be considered clearly erroneous. With respect to Plaintiff's eleventh assignment, that the court erred in refusing to admit a certain "Dauphin Deposit bank memorandum," the court is of the opinion that Plaintiff failed to authenticate the document for admission. It is within the discretion of 19 See Op. & Decree Nisi, May 17, 2002, at 8 n.37. The court found unpersuasive Plaintiff's vague assertions during trial and in the post-trial motion that unidentified individuals tampered with the official records of the Commonwealth in a "purposeful effort to remove the corporate existence of... Pennsy Supply, Inc." See Pl.'s Mot. for Post-Trial Relief, filed May 28, 2002. 20 See Pl.'s Ex. 5. 2~ E.g., Pl.'s Ex. 3. 22 Def.'s Ex. 8. 23 See Pl.'s Ex. 1. 7 the trial court to determine, "as a condition precedent to admissibility," whether sufficient evidence has been presented "to support a finding that the matter in question is what its proponent claims." Pa. R.C.P. 901(a); see Commonwealth v. Hudson, 489 Pa. 620, 630- 31, 414 A.2d 1381, 1387-88 (1980) (applying abuse of discretion standard to review of evidentiary rulings by trial court), cited in Pa. R.C.P. 901 cmt. In the present case, Plaintiff relied upon the testimony of a single witness,24 who was not author of the memorandum and who had not assisted in its preparation, to authenticate the document.25 In response to repeated questions, the witness could testify only that he had some knowledge of the subject matter of the document: "I recognize the details that's on this document. But can I recognize this particular document or not? I don't know.'26 In light of this testimony, it was not an abuse of discretion for the court to conclude that the witness lacked personal knowledge of the document and that Plaintiff had failed to authenticate the document for admission. Further, the court is of the opinion that the document was excludable on grounds of hearsay. Hearsay evidence, defined as any out-of-court statement "offered in evidence to prove the truth of the matter asserted," is generally inadmissible. Pa. R.C.P. 801-02; see also Hudson, 489 Pa. at 630-31, 414 A.2d at 1387-88 (applying abuse of discretion standard to review of evidentiary rulings by trial court). In the present case, Plaintiff sought to introduce the memorandum as proof of the existence of two "Permsy Supply" corporations,27 at which time the court identified the document as hearsay.28 Defendant 24 Plaintiff also attempted to subpoena another witness to testify about the document at issue; however, the subpoena was quashed on grounds of excessive burden and inconvenience. Plaintiff has not challenged this ruling. See Pa. R.C.P. 227. l(b) (stating that post-trial relief may be granted only when "the grounds therefor.., are specified in the motion"). 25 N.T. 94-98. 26 N.T. 97-98. 27 N.T. 95. 2a N.T. 96. offered no contrary argument, and it is believed that the court acted within its discretion in refusing to admit the document as hearsay. With respect to Plaintiff's twelfth assignment, that the court erred in refusing to admit records pertaining to Fiala, Inc., the court is of the opinion that, because Plaintiff offered no evidence to authenticate the records, the ruling could not be considered an abuse of discretion. As stated previously, for authentication purposes, the proponent of evidence must offer "evidence sufficient to support a finding that the matter in question is what its proponent claims." Pa. R.C.P. 901(a). in the present case, Plaintiff offered no evidence, testimonial or otherwise, relating to the records of Fiala, inc.29 As such, the court properly ruled that the evidence was inadmissible. With respect to Plaintiff's thirteenth assignment, that the court erred in refusing to admit an affidavit that had been filed by Plaintiff in opposition to Defendant's motion for summary judgment, the court is of the opinion that the affidavit was properly excluded as hearsay. As stated previously, hearsay evidence is defined as any out-of-court statement "offered in evidence to prove the truth of the matter asserted." Pa. R.C.P. 801-02; see a/so Hudson, 489 Pa. at 631-34, 414 A.2d at 1387-88 (applying abuse of discretion standard to review of evidentiary rulings by trial court), in the present case, Plaintiff sought to introduce the affidavit to support his claim of the existence of two "Pennsy Supply" corporations. At that time, the court stated that the document represented "an out-of-court statement introduced for the truth of the statement," and Plaintiff did not suggest an argument to the contrary.3° Thus, the court acted within its permissible discretion in refusing to admit the document. With respect to Plaintiff's final assignment of error, that the court should admit retrospectively into evidence the minutes of a special meeting of the shareholders of Nine Ninety-Nine, inc., the court is of the opinion that Plaintiff has waived this position by failing to introduce this document during trial. Post-trial relief may be granted only when 29 Xee N.T. 795. 3o N.T. 883-85. 9 "the grounds therefor,.., if then available, were raised.., by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial." Pa. R.C.P. 227. l(b). in the present case, Plaintiff did not attempt to introduce the document during trial,3~ and, therefore, has waived any argument that the court should have considered the document in the underlying case. For the foregoing reasons, the following final decree will be entered: FINAL DECREE AND NOW, this 29th day of July, 2002, upon consideration of Plaintiff's Motion for Post-Trial Relief, and for the reasons stated in the accompanying opinion, the motion is denied and the Decree Nisi dated May 17, 2002, is entered as a final decree. BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Robert M. Mumma, II Box E Bowmansdale, PA 17007 Plaintiff, Pro Se Michael A. Finio, Esq. Penn National Insurance Tower 2 North Second Street 7th Floor Harrisburg, PA 17101 Attorney for Defendant 3~ During trial, Plaintiff used the document in order to refresh the recollection of a witness but did not attempt to have the document marked as an exhibit or to introduce it into the record. See, e.g., N.T. 518 (concerning cross-examination by Plaintiff during which Plaintiff was asked whether the minutes of a special meeting of the shareholders of Nine Ninety-Nine, Inc., have "been marked as an exhibit," to which Plaintiff responded that "[i]t's just to refresh.., recollection"). i0 Stephen M. Donweber, Esq. Centre Square West 1500 Market Street 38th Floor Philadelphia, PA 19102-2186 Attorney for Defendant 11 12 ROBERT M. MUMMA, II, Plaintiff Vo PENNSY SUPPLY, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 99-2765 EQUITY TERM IN RE: PLAINTIFF'S MOTION FOR POST-TRIAL RELIEF BEFORE OLER~ J. FINAL DECREE AND NOW, this 29th day of July, 2002, upon consideration of Plaintiff's Motion for Post-Trial Relief, and for the reasons stated in the accompanying opinion, the motion is denied and the Decree Nisi dated May 17, 2002, is entered as a final decree. BY THE COURT, J. Wesley Oler, Jr., J. Robert M. Mumma, II Box E Bowmansdale, PA 17007 Plaintiff, Pro Se Michael A. Finio, Esq. Penn National Insurance Tower 2 North Second Street 7th Floor Harrisburg, PA 17101 Attorney for Defendant Stephen M. Donweber, Esq. Centre Square West 1500 Market Street 38th Floor Philadelphia, PA 19102-2186 Attorney for Defendant 14