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THOMAS A. JENNISON v. JOSEPH JENNISON (08/09/85)

filed: August 9, 1985.

THOMAS A. JENNISON, APPELLANT,
v.
JOSEPH JENNISON, APPELLEE



Appeal from the Order entered January 3, 1984 in the Court of Common Pleas of Allegheny County, Civil Action at No. GD82-11765.

COUNSEL

William S. Scott, Pittsburgh, for appellant.

James C. Larrimer, Pittsburgh, for appellee.

Beck, Popovich and Handler,*fn* JJ.

Author: Beck

[ 346 Pa. Super. Page 49]

This is an action in equity for specific performance of a stock purchase agreement. The Chancellor ruled that the contract could not be specifically enforced because the parties had not agreed on the price of the stock and the court could not supply the missing term. We affirm.

Plaintiff-appellant is the president and chief executive officer of South Pitt Tool Co., Inc. ("South Pitt"), a closely held corporation in Allegheny County. Defendant-appellee is the founder of the company who has essentially been retired since 1976. Appellant initially went to work for South Pitt in the spring of 1972, his original position being vice-president. At that time appellee transferred fifty shares of stock to appellant as an inducement to join the

[ 346 Pa. Super. Page 50]

    company. At the same time appellant was made a director of the corporation. Over a period of time additional stock was transferred to appellant, but appellee remained the majority shareholder.

On August 31, 1976, appellant and South Pitt entered into an employment agreement and appellant and appellee entered into a stock purchase agreement. The agreements were intended to be vehicles by which appellant would acquire both management responsibility and voting control of South Pitt. In paragraphs 1 and 2 of the stock purchase agreement (sometimes hereinafter referred to as "the 1976 agreement"), appellee agreed to sell and assign to appellant a portion of the stock totaling 100 shares for a stated consideration of $175 per share. This was to occur in two transactions, one in 1976 and the next in 1977. In paragraph 3, appellee agreed to sell 300 shares on or about March 1, 1982 "for a purchase price to be then negotiated and agreed upon by Buyer and Seller." Under paragraph 4, the installment payment of the purchase price for the 300 shares was to be secured by a collateral agreement, the terms of which also were left open.

Appellant made the payments contemplated by paragraphs 1 and 2 of the agreement and those transfers were completed. When the time came for transfer of the remaining 300 shares, appellee expressed a willingness to transfer the stock, reserving, however, voting rights for a substantial period of time. Negotiations to set the purchase price and other conditions of the sale broke down and the instant action followed.

Appellant's first contention is that the Chancellor erred in holding that the Statute of Frauds provision of the Uniform Commercial Code for the sales of securities, 13 Pa.C.S. ยง 8319, applied to the transaction at issue. Section 8319(1) states that a contract for the sale of securities is not enforceable unless "there is some writing . . . sufficient to indicate that a contract has been made for sale of a stated ...


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