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W.F. MEYERS COMPANY v. ELWOOD STODDARD (05/21/87)

decided: May 21, 1987.

W.F. MEYERS COMPANY, INC.
v.
ELWOOD STODDARD, DAVID E. MUFFLEY, JR., PAMELA F. MUFFLEY, AND FRANK BARNAKO, APPELLANTS



Appeal from the Judgment entered in the Court of Common Pleas of Northampton County, Civil Division, No. 1982-C-1954.

COUNSEL

Michael P. Shay, Bethlehem, for appellants.

Ronold J. Karasek, Bangor, for appellee.

McEwen,*fn* Del Sole and Tamilia, JJ.

Author: Tamilia

[ 363 Pa. Super. Page 483]

Appellee/Meyers filed suit against Elwood Stoddard, David Muffley, Pamela Muffley and Frank Barnako to recover damages for an alleged breach of contract. The matter began as a jury trial but at the conclusion of testimony the trial judge ruled there were no issues of fact for the jury to decide and rendered a verdict holding appellants, David Muffley and Pamela Muffley, personally liable to appellee. A hearing on damages was held with the court issuing an Order assessing damages in the amount of $6,932.18. Post-trial motions were denied, judgment was entered January 31, 1986 and this appeal followed.

The facts as found by the court indicate that in 1972 the Albion Vein Slate Company, Inc. (hereinafter Albion) and David Stoddard and Sons, Inc. merged. Albion was the surviving corporation but it was decided that business would be conducted under the fictitious name of Stoddard Slate Company, Inc. The officers of Albion were directed to arrange for the filing of the fictitious name and to execute the necessary documents.

Frank Baranko, a director of Albion, requested Attorney Thomas Maloney to file the forms necessary to register the fictitious name. After requesting and receiving the necessary information from Mr. Baranko the attorney failed to complete and file the necessary forms.

Appellants, David Muffley and Pamela Muffley, were shareholders and directors of Albion involved in the daily operation of the corporation. Both parties, while doing business with appellee, Meyers, held themselves to be representatives of Stoddard Slate Companies, Inc. The practical

[ 363 Pa. Super. Page 484]

    effect of the actions of the Board of Albion was that the Albion name ceased to exist, and following that action, the corporation conducted its business under the name of Stoddard. All that was required to complete the revision was registration of the Stoddard name pursuant to the fictitious name statute.

Appellee/Meyers through its sales representative dealt primarily with the Muffleys and provided goods with a value of $6,932.18, for which no payment was made.

The court in its discussion notes that the appellants took "all steps necessary to effectuate the existence of this surviving corporation, Albion, which was to conduct business as Stoddard Slate Company, Inc. However, through no fault of the Defendants, the Stoddard Slate Company, Inc. never materialized on public records." (Decision and Verdict, 3/26/85, p. 5) This was a finding that merger had been accomplished pursuant to Pennsylvania law on Corporations, 15 P.S. ยงยง 801-805. The court then stated the issue as "whether the fact that the name Stoddard Slate Company, Inc. was not ...


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