as consideration for the transfer be distributed to the stockholders of Autocar. The dissolution and distribution was an absolute condition to the transfer of the assets and without it the entire transaction would have been nullified. In short, the contract required that the stockholders of Autocar become stockholders of White.
Regardless of the form of the transaction, the fact is that these two corporations consummated an arrangement between themselves as a result of which, when fully carried out, the plaintiff will find, against her will, that she is no longer a stockholder of Autocar but is a stockholder of White, an entirely different corporation. She has, in the language of the opinion in the Lauman case, had her stock taken away from her and the stock of another company imposed upon her by way of compensation. If this can be done by merely omitting the final step required to make a statutory merger effective, there is very little life left in the principle upon which the Lauman case was decided.
As to the defense that the Court is without jurisdiction because the statute relating to merger and consolidation (section 908) gives the exclusive remedy of application to the Court for the appointment of appraisers and vests exclusive jurisdiction to appoint such appraisers in the Court of Common Pleas of the County in which the principle office of the corporation is located, it need only be said that the 'exclusive' remedy is available to a stockholder only in the case of a statutory merger and, then, only after the Department of State has approved the articles of merger. The defendants have insisted throughout that the transaction involved in this case was not a statutory merger, and I have held that it was not. The intentional failure of the defendants to complete the statutory proceedings, while it may deprive the plaintiff of the statutory remedy consisting of the appointment of appraisers, does not deprive her of all rights and does not deprive the Court of jurisdiction to accord such rights through ordinary court procedures. See Bloch v. Baldwin Locomotive Works, 75 Pa.Dist. & Co.R. 24, in which the Court said 'In the case at bar defendant never intended to submit articles of merger to the Department of State for approval, because defendant has not brought itself within the terms of the statute. Therefore, the dissenting shareholder stands helpless to protect his rights unless and until some way is found to determine whether a merger is in fact taking place. The court of equity has been given the statutory authority and responsibility under the 'Business Corporation Law', supra, to determine finally, the fair value of a dissenting shareholder's shares of stock. We see no reason, therefore, why equity should not also have authority to determine whether or not a merger has in fact taken place, where the statute is not followed by the corporation involved.'
There are a number of motions before the Court which will be governed by the principles stated in this opinion. Autocar's motion to dismiss will be denied, as will White's motion for judgment on the pleadings and its motion to strike the plaintiff's affidavit filed in connection with the plaintiff's motion for summary judgment. The plaintiff raised the question of the sufficiency of the defenses dealt with above by placing the matter on the argument list. This was equivalent to a motion to strike the defenses and it will be granted. The plaintiff's motion for summary judgment will be granted as to the issues dealt with in this opinion.
Orders may be submitted in accordance with the foregoing.
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