Appeal from order of Court of Common Pleas of Crawford County, Sept. T., 1972, No. 179, in case of John G. Reis v. Phillips Products Co., Inc., successor by merger and consolidation to Skyline Industries, Inc., a Delaware corporation.
Robert L. Walker, with him Thomas, Shafer, Walker, Dornhaffer & Swick, for appellant.
Daniel L. R. Miller, with him McClure, Dart, Miller, & Kelleher, for appellee.
Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.
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This case raises questions concerning the respective rights and duties in both assumpsit and trespass of a corporation and its employee-participants arising out of an executed retirement plan. The present state of the record, however, and the posture of the appeal compel a remand to the trial court and prevent us from considering the substantive merits involved.
The facts of record are not in dispute. On August 28, 1958, Skyline Industries, a proprietorship owned by Noel J. Poux, and four affiliated Skyline corporations, set up
[ 234 Pa. Super. Page 510]
a retirement plan for the benefit of certain Skyline employees. The number of employees covered by the plan does not appear of record. Plaintiff-appellee, an accountant employed by Skyline for many years, was both a participant and one of the three trustees of the plan. On April 10, 1959, the District Director of the Internal Revenue Service approved the plan as "qualified" within the then applicable provisions of the Code and Regulations issued pursuant thereto. See Internal Revenue Code §§ 401 and 402. At that time, a participant in a qualified plan was entitled to have his benefits taxed at capital gain rates if they were withdrawn in a lump sum within twelve months of the termination of employment.
In October, 1963, the proprietorship and the related corporations were consolidated into a Delaware corporation known as Skyline Industries, Inc. Skyline Industries was then acquired by Phillips Petroleum Corporation, and its name was subsequently changed to Phillips Products Company, Inc. Appellee remained an employee of the successor corporation until his retirement in September, 1968. On October 31, 1963, a duly authorized officer of Skyline Industries sent the following letter to Noel J. Poux, one of the three trustees of the Skyline Retirement Plan:
"Skyline Industries, Inc., agrees either to continue that certain Retirement Plan Agreement entered into August 25, 1958, . . . for a period of four (4) years from and after this date, or to provide Noel J. Poux, Elmer Lecompte and John G. Reis with the same benefits (before taxes) they would have received if said Agreement had been continued for such period."
Although appellee was one of the three original trustees, he never received a copy of this letter or any other notice of appellant's intention to discontinue the plan as of October 31, 1967. At a date not appearing of record, appellee was replaced as a trustee and ...