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HELEN METZGER v. CLIFFORD REALTY CORP. (04/06/84)

filed: April 6, 1984.

HELEN METZGER, ESAU JOSEPH, SAMUEL LEVIN, HAROLD SHERWIN, RICHARD J. MAKOUL, ESQUIRE, AS ESCROWEE, APPELLANTS,
v.
CLIFFORD REALTY CORP., A/K/A COMMUNICATIONS MEDIA, INC., AND PENTAMATION ENTERPRISES, INC.; ROBERT MARGOLIS, HARRY MARGOLIS, VINCENT ABAJIAN, AND ZARNAS CORPORATION, APPELLANTS, V. PENTAMATION ENTERPRISES, INC.



No. 328 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Northampton County, Civil, No. 32 October Term, 1977. No. 329 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas of Northampton County, Civil, No. 393 August Term, 1976.

COUNSEL

Richard J. Makoul, Allentown, for appellants (No. 328).

Michael Prokup, Allentown, for appellants (No. 329).

J. Stephen Kreglow, Easton, for appellees.

Spaeth, President Judge, and Montemuro, and Popovich, JJ.

Author: Montemuro

[ 327 Pa. Super. Page 380]

This matter is before the Court on the consolidated appeals of two groups of shareholders of the now defunct corporation, TV Time and Channel, Inc. (hereinafter "TV Time, Inc."). The shareholders brought parallel actions against Pentamation Enterprises, Inc. (hereinafter "Pentamation") under an agreement of sale wherein Pentamation, through a wholly owned subsidiary, purchased the business, assets, and liabilities of TV Time, Inc. After a non-jury trial, the lower court entered a verdict in favor of Pentamation, exceptions by the shareholders were dismissed, and judgment was entered. The shareholders appeal on the basis that the lower court's interpretation of the agreement of sale was erroneous.

Our scope of review of a judgment entered after a trial before a judge without a jury is limited. We must accept findings of fact which are supported by the evidence, for the lower court is in a better position than we are to resolve conflicts in the evidence and issues of credibility. We are not bound, however, by findings not supported by the evidence; nor are we bound by the lower court's inferences from this evidence or its conclusions of law. Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981).

[ 327 Pa. Super. Page 381]

The factual background of this matter is not in dispute, the parties having stipulated to the significant events involved. TV Time, Inc. operated a business of publishing a weekly television program listing under the copyrighted trade name of TV Time and Channel. Pentamation, a data processing firm, supplied its services to TV Time, Inc. to produce label and listing information. During the year 1971, the financial condition of TV Time, Inc. was poor; it was losing money*fn1 and Pentamation was not paid $12,000.00 for its data processing services rendered over several months.

Joseph Cunningham, the president of TV Time, Inc. and editor of TV Time and Channel, proposed that Pentamation acquire the business and revamp the product by investing substantial data processing technique to gear the booklet to specific cable companies. On August 30, 1971, the president of Pentamation wrote a letter to Cunningham presenting Pentamation's proposal for acquisition of TV Time and Channel:

Dear Joe:

[ 327 Pa. Super. Page 382]

During the past several months we have mutually discussed the feasibility of Pentamation acquiring TV Time & Channel. After reviewing the data you have supplied to us, we propose to acquire TV Time & Channel and to utilize the resources available to us to implement the computerized text system for cable editions. Our proposal is based on the creation of a new wholly owned corporation responsible for the current TV Time & Channel operations and the new text systems. It is our intent to make all reasonable efforts to insure the success of this new venture, however, due to the inherent risks involved, we make no guarantees and condition our offer so that final settlement for TV Time & Channel will require reasonable performance by the subsidiary Page 382} company over the next three years. The following points highlight our offer:

1. Pentamation, through the subsidiary company, would purchase the assets of TV Time & Channel for up to 50,000 shares of Pentamation common stock. This stock would be payable from the subsidiary company contingent on continued operations over a three year period, 15% (7,500 shares) payable October 1, 1971, 35% (17,500 shares) payable October 1, 1972, and 50% (25,000 shares) payable October 1, 1973 . . . .

The shareholders of TV Time, Inc. subsequently voted to accept this proposal of Pentamation, and an agreement was executed on October 21, 1971.

The agreement provides, in pertinent part:

1. Sale of Business. The Seller [TV Time, Inc.] shall sell, transfer and deliver to the Purchaser [Cliffland Realty Corp. a/k/a Clifford Realty Corp. a/k/a Communications Media, Inc., which corporation is a wholly owned subsidiary of Pentamation] all the Seller's assets shown on the schedule of the Seller, dated September 30, 1971 attached hereto as Exhibit "1" together ...


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