Lowry v. General Waterworks Corp.

26 Pa. D. & C.2d 154, 1961 Pa. Dist. & Cnty. Dec. LEXIS 91
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJune 21, 1961
Docketnos. 7620, 10562, 10563 and 10633; no. 18
StatusPublished
Cited by1 cases

This text of 26 Pa. D. & C.2d 154 (Lowry v. General Waterworks Corp.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowry v. General Waterworks Corp., 26 Pa. D. & C.2d 154, 1961 Pa. Dist. & Cnty. Dec. LEXIS 91 (Pa. Super. Ct. 1961).

Opinion

Milner, P. J.,

This is a proceeding to appraise the common and preferred stock of Fifteen Hundred Walnut Street Corporation as of June 2, 1957, the day before the date on which a majority of its shareholders approved a merger of that corporation with General Waterworks Corporation, respondent herein. Holders of 1,503 (of a total of 6,590 outstanding) shares of the common stock and 48 (of a total of 2,175% outstanding) shares of the preferred stock, dissenting from the action of the majority, petitioned the court pursuant to section 908 of the Business Corporation Law of May 5, 1933, P. L. 364, as amended March 31, 1941, P. L. 13, 15 PS §2852-908, to appoint appraisers to appraise the value of their shares of stock. The court, by decree entered July 8, 1959, appointed Paul Henon, William J. Meinel and Robert E. Lenton as appraisers. Paul Henon is an architect and builder of long experience; William J. Meinel is a corporation executive and business man also of long experience; Robert E. Lenton, Esq., is an experienced practicing lawyer. The court could interpolate many laudatory remarks about the ability and the outstanding accomplishments of the appraisers, but it will suffice to say that the court has the utmost confidence in their fitness to make a fair appraisement of the fair value of the stock of Fifteen Hundred Walnut Street Corporation. The appraisers held hearings on eight [156]*156days between April 18,1960, and June 1,1960, to hear the testimony of the witnesses for petitioners and respondent. The testimony covers 1,256 typewritten pages and there were 48 exhibits presented by petitioners and 18 exhibits presented by respondent. Both sides presented expert witnesses to testify in regard to various elements of value to be considered in appraising the stock. The appraisers determined the fair value of the common stock as of June 2, 1957, to have been $99.07 a share and the fair value of the preferred stock as of January 2, 1957, to have been $96.48 and based their recommendations as to the award to be made by the court to the dissenting stockholders on those values. The Act of Assembly makes no provision respecting exceptions to the appraisers’ report. However, by analogy to the rules of court in other proceedings, the appraisers furnished to each of the parties a copy of their report and award, with notice that the same would be filed on January 27, 1961, and that unless exceptions were filed within 20 days from the date of filing, the court would be asked to approve the report and enter the award of the appraisers as the award of the court.

Both petitioners and respondent have filed exceptions to the appraisers’ report. The gist of these exceptions is with respect to the fair value arrived at by the appraisers. Petitioners contend that the appraised values of the stocks are too low, and respondent contends they are too high. That the parties to this proceeding would have different ideas of the values of the stock is to be expected, but the disinterested appraisers appointed by this court, and not the parties, are the ones designated by the Act of Assembly to fix the value of the shares and the appraisers appointed herein, in whom the court has complete confidence as to their fairness, intelligence and diligence, have filed a comprehensive and persuasive report in which they set forth [157]*157the factual and legal reasons for their determination of the fair value of the stock involved herein. We approve and adopt the factual and legal reasons for their determination of the fair value of the said shares as the reasons of the court for making awards to the dissident stockholders based on the fair value as of June 2, 1957, of $99.07 a share for common stock and $96.48 a share for preferred stock as determined by the appraisers. We make reference to the appraisers’ report but deem it unnecessary to repeat the findings and reasonings thereof. It will suffice to discuss briefly those which were stressed at the hearing on the exceptions.

Plaintiffs (dissident stockholders) contended that “a corporate merger is an act of dissolution” and therefore the stock should be valued as though the corporation were in dissolution and the value to be ascertained were the liquidation value. The appraisers rejected this contention after reviewing the legislative history and significant Pennsylvania decisions, and valued the stock as a going concern as of June 2, 1957.

Under section 908B of the Business Corporation Law of May 5, 1933, as amended, supra, “the dissenting shareholder may. . . . apply, by petition to the court of common pleas, . . . for the appointment . . . of three disinterested persons to appraise the fair value of his shares without regard to any depreciation or appreciation thereof in consequence of the merger or consolidation. The award of the appraisers, or of a majority of them, shall be submitted to the court for determination, and the judgment of the court thereon shall be final and conclusive.”

The only remedy a dissenting stockholder has is to receive in exchange for his shares the fair value thereof as determined in accordance with the statute: Farris v. Glen Alden Corporation, 393 Pa. 427 (1958). Petitioners relied upon Lauman v. The Lebanon Valley [158]*158Railroad Company, 30 Pa. 42 (1858), and Parris v. Glen Alden Corporation, supra, as authorities for their contention. The Lauman case came before the courts over a century ago. It did not concern a merger under section 908 of the Business Corporation Law which applies in the case at bar. A-special act of the legislature had provided for the merger of the Lebanon Valley Railroad Company into the Philadelphia and Reading Railroad without making any provision for the event of a dissent by any shareholder. A shareholder filed a bill to restrain the merger. The language of the court in its opinion in that case suggests that the special act of the legislature was equivalent to the dissolution of the Lebanon Company. The court issued the injunction but directed that it be dissolved upon defendant posting security to the dissenting stockholder in “double the market value of his stock, to pay for the stock when its value shall be ascertained”. In Farris v. Glen Alden Corporation, supra, while the language of the court’s opinion suggests that a merger has in it the elements of a dissolution, nevertheless in holding that a dissenter to a “Reorganization Agreement” was entitled to the rights of a dissenter to a merger, makes it clear on page 435 of its opinion that that right is “to have his shares redeemed at their fair value.” It will be seen that even considering a merger to be equivalent to a dissolution, with which we do not agree, it does not follow that the fair value of the dissenter’s shares is that which he would have received in the event of dissolution without merger. As the appraisers very pertinently state:

“Such a result could work great hardship in the case ■of a corporation whose earnings were inordinately high but whose tangible assets would yield little if exposed to sale. Moreover, even if merger was synonymous with dissolution, the act of assembly prescribes that the fair value is to be determined without regard [159]*159to the effect of the merger; which we take to mean that the value to be arrived at is the fair value of the shares at the date of merger considering the corporation as a continuing project, as if no merger had been effected.”

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Bluebook (online)
26 Pa. D. & C.2d 154, 1961 Pa. Dist. & Cnty. Dec. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowry-v-general-waterworks-corp-pactcomplphilad-1961.