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O'CONNOR APPEAL (10/12/71)

decided: October 12, 1971.

O'CONNOR APPEAL


Appeal from judgment of Court of Common Pleas of Lancaster County, Trust Book No. 41, page 202, in re appeal of Laura Watt O'Connor.

COUNSEL

James P. Coho, for appellant.

Raymond W. Midgett, Jr., with him Kenneth W. Gemmill, John I. Hartman, Jr., Dechert, Price & Rhoads, and Windolph, Burkholder & Hartman, for appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 444 Pa. Page 207]

The appeal presents the question of whether an award made to a dissenting shareholder under § 515 of the Business Corporation Law*fn1 was supported by competent evidence. We find that it was not, and accordingly

[ 444 Pa. Page 208]

    remand the record for a new determination of fair value.*fn2

The majority shareholders of Watt & Shand, a Pennsylvania corporation, amended the corporation's articles of incorporation to eliminate cumulative voting. Appellant Laura Watt O'Connor, a dissenting shareholder, duly objected and demanded the fair value payment of her 813 shares of common stock.*fn3 Pursuant to the provisions of § 515 the appellee, Watt & Shand, made an offer to pay the appellant $93.46 per share.*fn4

[ 444 Pa. Page 209]

This offer was refused. The corporation then petitioned the court to determine the fair value of appellant's shares. Exercising its prerogative under § 515 the trial court appointed an appraiser to receive evidence and make a recommendation as to the fair value of the dissenting shareholder's stock.*fn5 During the course of the hearings before the appraiser the respective parties presented experts whose testimony on the fair value of the shares ranged from $90 to $272. Following the conclusion of the hearings the appraiser in his report to the court recommended that the appellant be paid $84.56 per share. Appellant filed exceptions to the appraiser's report. The trial court dismissed the exceptions and adopted the findings of the appraiser. This appeal ensued.

Our review of this appeal encompasses only an ascertainment of whether the findings of the trial court are supported by competent and substantial evidence.*fn6 We reject appellant's request that we make an independent determination as to the fair value of her shares: "This Court does not sit as a trier of issues of fact expecting to be persuaded that one or the other side is more ...


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