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J. BARRY MACNEAL & HAROLD F. SCATTERGOOD v. I.C.O.A. (03/17/89)

filed: March 17, 1989.

J. BARRY MACNEAL & HAROLD F. SCATTERGOOD, APPELLEES,
v.
I.C.O.A., INC. & GERALD L. BRODSKY, CHAIRMAN-I.C.O.A., INC., APPELLANTS



Appeal from the Order entered May 3, 1988, in the Court of Common Pleas of Philadelphia County, Civil No. 4582 FEB 1988.

COUNSEL

Paul R. Rosen, Philadelphia, for appellants.

Jean C. Hemphill, Philadelphia, for appellees.

Olszewski, Beck and Johnson, JJ.

Author: Olszewski

[ 382 Pa. Super. Page 431]

This is an appeal following the trial court's certification that a substantial issue of jurisdiction exists pursuant to Pa.R.A.P. 311(b)(2). We affirm the trial court's order dismissing appellants' preliminary objections.

The procedural history of this appeal follows. Appellees are shareholders of I.C.O.A. In April of 1987, appellees brought an action against I.C.O.A., a Nevada corporation

[ 382 Pa. Super. Page 432]

    conducting business in Pennsylvania and Illinois, and Gerald Brodsky, the former president of I.C.O.A., requesting the court to compel I.C.O.A. to permit the appellees to inspect its corporate books and records. This suit was brought pursuant to the Pennsylvania Business Corporation Act, 15 P.S. § 1308 C. At the time of this action, I.C.O.A.'s corporate books and records were maintained in Philadelphia. Following a hearing on this matter, a stipulation was entered into by the parties wherein I.C.O.A. agreed to release on-going financial information to the shareholders on a quarterly basis, file a 10-K or S-1 Registration Statement with the Securities and Exchange Commission, and forego further legal action on the matter in exchange for the plaintiffs' agreement to mark the matter settled, discontinued and ended. On June 8, 1987, a stipulated order was entered in the Court of Common Pleas, Philadelphia County. The trial court presiding over the present action found that appellant I.C.O.A. complied with this stipulated order. (Finding of Fact No. 15, filed May 2, 1988).

On February 8, 1988, appellees brought a second action against I.C.O.A. pursuant to 15 P.S. § 1308 C seeking to inspect the corporate books and records.*fn1 I.C.O.A. filed preliminary objections to this action arguing, inter alia, that the Court of Common Pleas of Philadelphia County did not have jurisdiction over its books and records as they were not located in the Commonwealth, and that the action was barred by the doctrine of res judicata as the same action was litigated in 1987. Following a hearing on I.C.O.A.'s preliminary objections, the trial court entered an order

[ 382 Pa. Super. Page 433]

    dismissing the preliminary objections and filed findings of facts and conclusions of law which maintained that the court had jurisdiction over the action and that the action was not barred by res judicata. On May 24, 1988, the trial court signed an order certifying the jurisdictional issue for appeal as a substantial issue of jurisdiction was presented. Notice of appeal was filed on May 26, 1988. Appellees filed a motion to quash the instant appeal on August 16, 1988, and this motion to quash was denied on September 14, 1988.

As has already been mentioned, appellees brought an action against I.C.O.A. seeking to inspect the corporate records. This action was brought pursuant to 15 ...


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