exist as a corporate entity, abandoning its name and legal identity, becoming a division of Porter, with all of its stockholders becoming stockholders of Porter, and Pittsburgh assuming the liabilities of Disston, this transaction was in effect a de facto merger. See the unreported opinions dated 9/4/54 and 2/17/55 of Chief Judge Kirkpatrick in Marks v. Autocar Co., and White Motor Co., D.C., 153 F.Supp. 768; 152 F.Supp. 408; cf. Bloch v. Baldwin Locomotive Works, C.P.Del.Co., 1950, 75 Pa.Dist. & Co.R. 24, 1950.
Under the Marks case, supra, whether Disston's transfer of its assets to Pittsburgh be labelled by Disston and Porter as a merger or a sale, the 'exclusive' remedy of Section 908, subd. C does not preclude this action or the jurisdiction of this court. Section 901 et seq. provides a procedure by which statutory merger may be accomplished, and if the corporations choose to use such procedure, dissenting shareholders are restricted to the remedy envisioned in Section 908.
But if the corporations do not choose the statutory method of merger and attempt to follow the procedure under Section 311 so that the transaction should appear to be a sale of assets, rather than a merger, then dissenting shareholders, though defeated from their right to the statutory remedy of appraisal by three disinterested persons appointed by the Court of Common Pleas, still cannot lose their rights to receive payment for their shares under the common law principles
stated in Lauman v. The Lebanon Valley Railroad Company, 1858, 30 Pa. 42.
The court there said, 30 Pa. at p. 47:
'Now, it is plain enough that a dissenting member cannot thus be forced into a new corporation, and that his property in one corporation cannot be taken from him and the stock of another imposed upon him by way of compensation, by the act either of the legislature or of his co-corporators, or of both combined.'
Defendant Porter in addition claims that if, pursuant to the Agreement and Plan of Reorganization, plaintiffs became legally or equitably entitled to the fair value of their stock, such claim exists only against Disston and not against Porter. The theory of the Lauman case, supra, is that Disston is a proper party to sue (see first paragraph of opinion 30 Pa. at page 44) and, further, that a shareholder's 'property in one corporation cannot be taken away from him' in exchange for stock of another corporation so that, apparently, Pittsburgh, which has received Disston's property, would also be a proper defendant. However, counsel have produced no authority justifying the maintenance of such an action against a defendant which has no property of the company in which the dissenting shareholder holds stock. Under such circumstances, the defendant Porter is entitled to judgment in its favor.
Finally, defendants' motion to dismiss the complaint of plaintiff Weinberger as the amount in controversy does not exceed $ 3,000 will be postponed for determination at the time of trial.
And now, May 9, 1957, it is ordered that the motion to dismiss of Henry Disston & Sons, Inc., filed March 7, 1956, is denied, and the motion to dismiss or for summary judgment of H. K. Porter Company, Inc., filed March 23, 1956, is granted, and that this action is dismissed, with prejudice, as to defendant H. K. Porter Company, Inc.