J-S07003-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT M. MUMMA, II,                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

CRH, INC., PENNSY SUPPLY, INC., LISA
M. MORGAN, BARBARA MCKIMMIE
MUMMA, LINDA MUMMA ROTH,
MORGAN, LEWIS & BOCKIUS, AND
STRADLEY RONON STEVENS & YOUNG,

                          Appellee                    No. 707 MDA 2015


                Appeal from the Order Entered March 25, 2015
             In the Court of Common Pleas of Cumberland County
                      Civil Division at No(s): 1999-01546


BEFORE: BOWES, OTT, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 05, 2016

       Robert M. Mumma, II (“Mumma”), appeals from the March 25, 2015

order entering final judgment in favor of all defendants herein.

       This matter concerns the sale of a family business.     The business, a

construction and quarry company, was founded by Mumma’s grandfather

and eventually began to operate under the name of Pennsy Supply, Inc.

(“Pennsy”). In 1982, corporate officers of Pennsy filed articles changing the

name of Pennsy to Nine Ninety-Nine, Inc. (“Ninety-Nine”), and all shares of

Pennsy were cancelled and replaced with shares of Ninety-Nine.       In 1993,


*
    Former Justice specially assigned to the Superior Court.
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Ninety-Nine was sold to CRH, Inc. (“CRH”), an Irish Corporation, for $34

million. While Mumma joined in the sale and received $3 million dollars for

his Ninety-Nine stock, he has since devoted considerable time and resources

in an attempt to avoid the consequences of the 1993 sale.

     Mumma filed this lawsuit in 1999 against CRH, Pennsy, Lisa M.

Morgan, Barbara McKimmie Mumma, Linda Mumma Roth, the law firm of

Morgan, Lewis & Bockius, and the law firm of Stradley Ronon Stevens &

Young (collectively “defendants”).      He averred herein that the named

defendants, individually and collectively, fraudulently concealed documents

and information that would have resulted in Mumma’s refusal to consent to

the 1993 sale of Ninety-Nine to CRH. Mumma specified two documents that

were allegedly concealed from him: 1) a Pennsy shareholders’ agreement

dated December 29, 1961, which purportedly gave Mumma the option of

purchasing Pennsy stock at face value; and 2) a shareholders’ agreement

dated August 1, 1993. The defendants herein filed preliminary objections,

and Mumma countered with a motion seeking permission to file an amended

complaint.    Mumma’s motion was denied, but the preliminary objections

remained unresolved in this lawsuit.

     In 1999, Mumma instituted another legal action, a declaratory

judgment case assigned number 99-2765 in the civil division of Cumberland

County. Therein, Mumma asked for a declaration that he had an ownership

interest in a corporation known as Pennsy Supply Inc., a corporation which

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had a name with no comma between “Supply” and “Inc.”         Mumma claimed

that the corporation Pennsy Supply Inc. operated as a separate and distinct

entity from Pennsy, which did have a comma between “Supply” and “Inc.”

Mumma produced a stock certificate issued in 1963 demonstrating that he

owns 314 shares of Pennsy Supply Inc. and averred at action 99-2765 that

Pennsy Supply Inc. owned the quarry and construction business of the

Mumma family while CRH bought Pennsy, which owned no assets.

Alternatively, in the other case, Mumma requested a declaration that the

December 29, 1961 shareholders' agreement relied upon in this lawsuit gave

Mumma a right of first refusal to purchase the Pennsy stock sold to CRH.

     After a five-day nonjury trial, the trial court at 99-2765 found in favor

of the defendants. As we noted in Mumma’s appeal from the verdict, Pennsy

“produced certified records from the Commonwealth demonstrating that

there was only one Pennsy Supply, Inc. in Pennsylvania from 1958 to 1993.

It also produced a 1963 shareholders’ agreement that rescinds the 1961

agreement.    [Mumma’s] 1963 stock certificate was issued after the 1961

agreement was rescinded by the same two people who entered the 1961

agreement.”    Mumma II v. Pennsy Supply, Inc., 833 A.2d 1156

(Pa.Super. 2003) (unpublished memorandum at 3), appeal denied, 847 A.2d

1287 (Pa. 2004).     We affirmed the trial court’s finding that the 1961

shareholders’ agreement had been rescinded and that Mumma never had an

option to purchase Pennsy stock at face value. Id.

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     Mumma also instituted an action in 2004 claiming that the people who

changed the name of Pennsy to Ninety-Nine were not legally authorized to

take that action so that Pennsy’s assets remained in its name and were not

sold to CRH. Preliminary objections were filed to Mumma’s complaint, they

were granted, and we affirmed on appeal. Mumma v. Lake, 895 A.2d 657

(Pa.Super. 2006) (unpublished memorandum).

     Activity in the present case resumed on August 21, 2013, when Lisa

Morgan, both individually and as executrix of the estate of Barbara

McKimmie Mumma, withdrew her preliminary objections and filed an answer

and new matter.    Ms. Morgan then filed a motion for judgment on the

pleadings on the basis of collateral estoppel.   She averred that it was

adjudicated in case 99-2765 that the 1961 shareholders’ agreement relied

upon by Mumma herein was terminated and did not confer a right on

Mumma to purchase Pennsy stock.

     The trial court granted Ms. Morgan’s motion for judgment on the

pleadings, concluding that collateral estoppel applied.   It noted that the

court in action 99-2765 ruled that the 1961 shareholders’ agreement was

rescinded by the 1963 agreement and that Mumma never had the right to

purchase Pennsy stock. The trial court herein rejected Mumma’s argument

that, since our decision in the case at 99-2765 was an unpublished

memorandum, it could not be relied upon.     See Superior Court Operating

Procedure § 65.37(A), which permits an unpublished memorandum decision

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to be relied upon and cited “when it is relevant under the doctrine of law of

the case, res judicata, or collateral estoppel[.]”

      The remaining defendants in this action then filed a joint motion for

judgment on the pleadings.       Mumma filed a praecipe to discontinue this

action on January 27, 2015, and then, after the date for the argument on

the pending motion for judgment on the pleadings had passed, Mumma filed

a praecipe to withdraw his discontinuance. On February 25, 2015, all of the

defendants filed a joint petition to strike Mumma’s praecipe to withdraw his

discontinuance. On March 25, 2015, the trial court granted the defendants’

petition, struck Mumma’s praecipe to withdraw his discontinuance, and

entered judgment in favor of the defendants. This appeal followed. Mumma

presents these issues:

            The Court erred by not allowing Plaintiff to amend or re-file
      his complaint in 1999-1546.

            The court erred in assuming, without a hearing, that the
      defendant in the previous litigation (Equity 66 and 1999-2765)
      was the same entity.

           The court abused its discretion when it ignored the basis of
      the Complaint a[t] 1999-1546, was that the Executor's
      purposefully withheld the documents and true identity of Pennsy
      Supply Inc. the real owner of the Silver Springs Quarry.

          The Court erred in not adopting Allegation 10. of the
      Complaint as fact.

           The Court erred in adopting the findings of Judge J. Wesley
      Oler in [case number] 1999-2765.           The Court erred in
      determining that the Plaintiff sought to avoid the upcoming
      Argument court and used "bait and switch" tactics.

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Appellant’s brief at 3.

      At issue herein is whether judgment on the pleadings on the basis of

collateral estoppel was properly granted.      We first set forth applicable

principles for reviewing a motion granting judgment on the pleadings.

             Our review of a trial court's decision to grant judgment on
      the pleadings is limited to determining whether the trial court
      committed an error of law or whether there were facts presented
      which warranted a jury trial. In so reviewing, we look only to the
      pleadings and any documents properly attached thereto.
      Judgment on the pleadings is proper only where the pleadings
      evidence that there are no material facts in dispute such that a
      trial by jury would be unnecessary.

Katzin v. Cent. Appalachia Petroleum, 39 A.3d 307, 309 (Pa.Super.

2012).

      The trial court concluded that Mumma’s right to purchase Pennsy stock

under the 1961 shareholders’ agreement was adjudicated in action 99-2765,

which prevented Mumma from prevailing in this case.        As we observed in

Weissberger v. Myers, 90 A.3d 730, 733 (Pa.Super. 2014) (citations and

quotation marks omitted):

            Collateral estoppel, or issue preclusion, is a doctrine which
      prevents re-litigation of an issue in a later action, despite the
      fact that it is based on a cause of action different from the one
      previously litigated.

            Collateral estoppel applies if (1) the issue decided in the
      prior case is identical to one presented in the later case; (2)
      there was a final judgment on the merits; (3) the party against
      whom the plea is asserted was a party or in privity with a party
      in the prior case; (4) the party or person privy to the party
      against whom the doctrine is asserted had a full and fair

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      opportunity to litigate the issue in the prior proceeding and (5)
      the determination in the prior proceeding was essential to the
      judgment.

      In this case, Mumma sought to unravel the sale of Pennsy’s successor,

Ninety-Nine, to CRH by claiming that he would not have assented to that

sale had he known that he had the right to purchase the Pennsy stock under

the 1961 shareholders’ agreement.          He charged the defendants with

concealing the 1961 shareholders’ agreement from him.        In the case that

Mumma brought at 99-2765, the trial court held, and this Court affirmed,

that Mumma never had the right to purchase Pennsy stock because the 1961

shareholders’     agreement   was   terminated   by   a   1963   shareholders’

agreement.      That other action proceeded to final judgment on the merits.

Mumma was a party to that lawsuit, and he had a full and fair opportunity to

litigate the issue. Finally, the issue was essential to the judgment entered

against him in that case.     Hence, collateral estoppel applies, and, in this

appeal, Mumma makes no cogent argument supported by pertinent legal

authorities to avoid that result. Hence, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/5/2016


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