MacNeal v. I.C.O.A., Inc.

555 A.2d 916, 382 Pa. Super. 430, 1989 Pa. Super. LEXIS 630
CourtSuperior Court of Pennsylvania
DecidedMarch 17, 1989
DocketNo. 1668
StatusPublished
Cited by4 cases

This text of 555 A.2d 916 (MacNeal v. I.C.O.A., Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MacNeal v. I.C.O.A., Inc., 555 A.2d 916, 382 Pa. Super. 430, 1989 Pa. Super. LEXIS 630 (Pa. Ct. App. 1989).

Opinion

OLSZEWSKI, Judge:

This is an appeal following the trial court’s certification that a substantial issue of jurisdiction exists pursuant to Pa.R.A.P. 311(b)(2). We affirm the trial court’s order dismissing appellants’ preliminary objections.

The procedural history of this appeal follows. Appellees are shareholders of I.C.O.A. In April of 1987, appellees brought an action against I.C.O.A., a Nevada corporation [432]*432conducting business in Pennsylvania and Illinois, and Gerald Brodsky, the former president of I.C.O.A., requesting the court to compel I.C.O.A. to permit the appellees to inspect its corporate books and records. This suit was brought pursuant to the Pennsylvania Business Corporation Act, 15 P.S. § 1308 C. At the time of this action, I.C.O.A.’s corporate books and records were maintained in Philadelphia. Following a hearing on this matter, a stipulation was entered into by the parties wherein I.C.O.A. agreed to release on-going financial information to the shareholders on a quarterly basis, file a 10-K or S-l Registration Statement with the Securities and Exchange Commission, and forego further legal action on the matter in exchange for the plaintiffs’ agreement to mark the matter settled, discontinued and ended. On June 8, 1987, a stipulated order was entered in the Court of Common Pleas, Philadelphia County. The trial court presiding over the present action found that appellant I.C.O.A. complied with this stipulated order. (Finding of Fact No. 15, filed May 2, 1988).

On February 8, 1988, appellees brought a second action against I.C.O.A. pursuant to 15 P.S. § 1308 C seeking to inspect the corporate books and records.1 I.C.O.A. filed preliminary objections to this action arguing, inter alia, that the Court of Common Pleas of Philadelphia County did not have jurisdiction over its books and records as they were not located in the Commonwealth, and that the action was barred by the doctrine of res judicata as the same action was litigated in 1987. Following a hearing on I.C.O. A.’s preliminary objections, the trial court entered an order [433]*433dismissing the preliminary objections and filed findings of facts and conclusions of law which maintained that the court had jurisdiction over the action and that the action was not barred by res judicata. On May 24, 1988, the trial court signed an order certifying the jurisdictional issue for appeal as a substantial issue of jurisdiction was presented. Notice of appeal was filed on May 26,1988. Appellees filed a motion to quash the instant appeal on August 16, 1988, and this motion to quash was denied on September 14, 1988.

As has already been mentioned, appellees brought an action against I.C.O.A. seeking to inspect the corporate records. This action was brought pursuant to 15 P.S. § 1308 C, which provides as follows:

C. If the corporation, or an officer or agent thereof, refuses to permit an inspection sought by a shareholder or attorney or other agent acting for the shareholder pursuant to subsection B of this section or does not reply to the demand within five business days after the demand has been made, the shareholder may apply to the court of common pleas of the county in which the registered office of the corporation is located for an order to compel such inspection. Such court of common pleas is hereby vested with exclusive jurisdiction to determine whether or not the person seeking inspection is entitled to the inspection sought. The court may summarily order the corporation to permit the shareholder to inspect the share register and the other books and records of the corporation and to make copies or extracts therefrom; or the court may order the corporation to furnish to the shareholder a list of its shareholders as of a specific date on condition that the shareholder first pay to the corporation the reasonable cost of obtaining and furnishing such list and on such other conditions as the court deems appropriate. Where the shareholder seeks to inspect the books and records of the corporation, other than its share register or list of shareholders, he shall first establish (1) that he has complied with the provisions of this section respecting the [434]*434form and manner of making demand for inspection of such document; and (2) that the inspection he seeks____

Based upon the above statute, appellees MacNeal and Scattergood contend that the trial court was vested with jurisdiction in this case. Appellants, in their preliminary objections, allege that I.C.O.A. is a foreign corporation doing business in Pennsylvania, whose books and records of account are not located within the jurisdiction at the time of the written demand. Before resolving the above dispute, we must be mindful of the fact that an appeal from an order dismissing preliminary objections challenging trial court’s subject matter jurisdiction over a complaint is interlocutory and ordinarily not appealable. See, Davis Supermarkets, Inc. v. United Food and Commercial Workers, Local 23, 368 Pa.Super. 290, 533 A.2d 1068 (1987). An interlocutory appeal of right exists, however, where the order of the trial court sustains jurisdiction over a person or real property if the court states in an order that a substantial issue of jurisdiction is presented. Pa.R.A.P. 311(b); see, City of Philadelphia v. Franklin Smelting and Refining Co., 303 Pa.Super. 393, 449 A.2d 745 (1982). Such is the situation presented by the case sub judice. For purposes of our review, therefore, we apply the standard utilized by cases in which our Court had to determine whether the trial court was correct in concluding it had subject matter jurisdiction. Specifically, we accept as true all facts averred in the complaint. Glen Alden Corp. v. Tomchick, 183 Pa.Super. 306, 130 A.2d 719 (1957). We now begin our review of the instant case.

In their complaint, appellees aver that I.C.O.A. is a Nevada corporation with its principal place of business in Philadelphia and that the corporation is registered to do business in Pennsylvania. Appellants responded with preliminary objections which alleged that I.C.O.A. is a foreign corporation doing business in Pennsylvania whose books and accounts are not physically located in the jurisdiction at the time of appellees’ written demand in February of 1988. Following a hearing on this issue, the trial court issued its [435]*435determination that “it does not appear with certainty that upon the facts averred, that the law will not permit Plaintiffs to review the books and records of I.C.O.A. Therefore, the Plaintiffs must be permitted to proceed forward.” (Conclusion of Law No. 5, filed May 2, 1988).

Appellants raise three issues for our review: (1) whether the trial court improperly expanded its mandamus jurisdiction beyond its statutory limits in permitting an inspection of a foreign corporation’s books and records when the books and records are not located within the Commonwealth; (2) whether the trial court misquoted the Pennsylvania Business Corporation Act and granted relief which is not contained in the statute; and (3) whether the trial court should have dismissed the action under the doctrine of res judicata. Appellant’s brief at 2.

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Cite This Page — Counsel Stack

Bluebook (online)
555 A.2d 916, 382 Pa. Super. 430, 1989 Pa. Super. LEXIS 630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macneal-v-icoa-inc-pasuperct-1989.