that Fitzpatrick was only Chemlime's and not Cenco's employee. The three agreements do not provide, however, that defendant Cenco in any way guarantees the obligations of Chemlime or binds itself. Indeed the name "Cenco" never appears in the contracts. Mr. Read's execution of all three agreements is clearly on behalf of Chemlime; no recital of Mr. Read's connection with Cenco appears on the documents.
There is abundant evidence in the record to show a close relationship between Cenco and Chemlime. We do not reach the question of whether the evidence is sufficient to establish the "alter ego" relationship argued for by plaintiffs, however, because there is no proof that the corporate form of the subsidiary was used by the defendant to perpetrate a fraud or promote an injustice akin to fraud. Absent the element of fraud or injustice akin to fraud, we cannot disregard the corporate structure of Chemlime and impose liability on its parent, Cenco. " Any court must start from the general rule that the corporate entity should be recognized and upheld, unless specific, unusual circumstances call for an exception." Zubik v. Zubik, 384 F.2d 267, 273 (3rd Cir. 1973). These circumstances arise "where the corporation . . . is used principally as an intermediary to perpetrate fraud or promote injustice." Bankers Life and Casualty Co. v. Kirtley, 338 F.2d 1006, 1013 (8th Cir. 1964). See also Whayne v. Transportation Management Service, Inc., 252 F. Supp. 573, 577 (E.D.Pa.1966); Berger v. Columbia Broadcasting System, Inc., 453 F.2d 991, 995 (5th Cir. 1972). But " absent bad faith in its formation or its use as some nefarious instrumentality, (the corporation) can stand independent and immune to the piercing operation." Maley v. Carroll, 381 F.2d 147, 153 (5th Cir. 1967).
There is no allegation in the instant case that Chemlime was acquired by Cenco with the intention of its misuse to plaintiffs' detriment. There is no proof that at the time Chemlime executed its agreements with plaintiffs Cenco concealed its relationship with Chemlime or used its control over Chemlime to defraud or deceive plaintiffs. There is no evidence that Cenco had any specific corporate opportunities in mind which dictated the form of Chemlime's agreements with plaintiffs. Conversely, the evidence shows that plaintiffs executed a contract which bound only the subsidiary and not the parent corporation notwithstanding plaintiffs' knowledge of the interrelation of the two. We can find no obligation of Cenco toward these plaintiffs to provide for the subsequent acquisition of Limco and Industrial in such a way as to insure plaintiffs' receipt of royalty payments under their agreement with Chemlime.
Where, as here, the parties deal at arm's length, represented by counsel, " the 'corporate veil' cannot be removed merely to give a litigant an advantage at law." Wooddale, Inc. v. Fidelity and Deposit Co. of Maryland, 378 F.2d 627, 631 (8th Cir. 1967). "A hard bargain is not enough to energize the equitable power to disregard the corporate form." Maley, cite supra, 381 F.2d at 154. A party which knowingly limits its contractual relationship to one of two or more related corporate enterprises cannot successfully attack the validity of the entity with which it dealt without proof of misrepresentation or other unusual circumstances justifying the application of an estoppel. Brown v. Gloeckner, 383 Pa. 318 118 A.2d 449, 451 (1955); Plumbers and Fitters Local 761 v. Matt J. Zaich Construction Co., 418 F.2d 1054 (9th Cir. 1969).
The only allegation of plaintiffs which might be relevant to requirements of Brown and Plumbers is recited in their proposed finding of fact No. 15; "During the negotiations, Fitzpatrick assured plaintiffs that . . . they did not have to be concerned about Cenco or Chemlime building another plant within the 200-mile radius." Even if we were to accept that Fitzpatrick made such a statement there was no attempt to incorporate such a provision in the final contract, and we do not believe that such a statement would be sufficient to allow this court to pierce Chemlime's veil. Cenco never did build a plant within the proscribed area; it only acquired existing operating facilities of an outside party. Moreover, there is no proof that, in reliance on this specific representation of Fitzpatrick, plaintiffs declined to insist on Cenco's participation in their agreement with Chemlime.
Plaintiffs also suggest that liability can be imposed on Cenco under the "theory of enterprise unity" or under an unprecedented unnamed tort, the elements of which are not recited. We find in plaintiffs' briefs neither case law nor public policy argument compelling enough to justify such an expansion of remedies under contract of tort law.
This action having been tried by the court without a jury and the court having reached the aforesaid findings of fact and conclusions of law, it is hereby ordered that judgment be, and the same is, entered in favor of Defendant and against Plaintiffs.
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