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O'CONNOR APPEAL (05/04/73)

decided: May 4, 1973.

O'CONNOR APPEAL


Appeal from judgment of Court of Common Pleas of Lancaster County, Trust Book, No. 41, page 202, in re: Watt & Shand; 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.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts and Mr. Justice Nix concur in the result.

Author: Eagen

[ 452 Pa. Page 289]

Appellant, Laura Watt O'Connor, is the owner of 813 shares of common stock of Watt & Shand, a Pennsylvania corporation, which operates department stores in Lancaster. At the corporation's annual meeting on April 24, 1969, the majority shareholders amended the articles of incorporation to eliminate cumulative voting. Mrs. O'Connor dissented from the plan and in accordance with the Act of May 5, 1933, P. L. 364, § 515, as amended, 15 P.S. § 1515*fn1 demanded the fair value payment of her shares of stock.

[ 452 Pa. Page 290]

Watt & Shand offered to pay appellant $93.46 per share which was refused.*fn2 The corporation then petitioned the Court of Common Pleas of Lancaster County to determine the fair value of appellant's stock. Exercising its prerogative under the statute,*fn3 the trial court appointed an appraiser to receive evidence and make a recommendation concerning the fair value of the stock. At the close of hearings, the appraiser recommended appellant be paid $84.56 per share. The trial court dismissed appellant's exceptions and adopted the findings of the appraiser. On appeal we vacated the judgment and remanded for a new determination of fair value because the court's acceptance of the appraiser's recommendation was not supported by competent and substantial evidence, which, incidentally, is the compass of our review. O'Connor Appeal, 444 Pa. 206, 283 A.2d 279 (1971).

On remand, counsel for both parties agreed the new determination of fair value should be decided upon the

[ 452 Pa. Page 291]

    record previously made. On May 23, 1972, the trial court, without appointing an appraiser, found the fair value to be $102.15 per share and entered judgment for appellant in the amount of $83,047.95, without interest, but with costs (other than all fees and expenses of counsel and expert witnesses) to be paid equally by the parties.*fn4

Two contentions are advanced by this appeal: (1) the trial court again failed to make a proper determination of fair value, and (2) error was committed in refusing to award interest and ...


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