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[U] Lustig v. Seffer

Superior Court of Pennsylvania

November 6, 2013

GERALD A. LUSTIG, INDIVIDUALLY AND AS A SHAREHOLDER OF CAMP WEEQUAHIC, A PENNSYLVANIA CORPORATION, Appellant
v.
BERNARD SEFFER, AS ADMINISTRATOR OF THE ESTATE OF JOAN (LUSTIG) SEFFER, BERNARD SEFFER, GAYLE LUSTIG, INDIVIDUALLY AND AS DIRECTORS OF CAMP WEEQUAHIC, INC., THE BOARD OF DIRECTORS OF CAMP WEEQUAHIC, INC. AND CAMP WEEQUAHIC, INC., AS A NOMINAL DEFENDANT Appellees GERALD A. LUSTIG, INDIVIDUALLY AND AS A SHAREHOLDER OF CAMP WEEQUAHIC, A PENNSYLVANIA CORPORATION, Appellant
v.
BERNARD SEFFER, AS ADMINISTRATOR OF THE ESTATE OF JOAN (LUSTIG) SEFFER, BERNARD SEFFER, GAYLE LUSTIG, INDIVIDUALLY AND AS DIRECTORS OF CAMP WEEQUAHIC, INC., THE BOARD OF DIRECTORS OF CAMP WEEQUAHIC, INC. AND CAMPWEEQUAHIC, INC., AS A NOMINAL DEFENDANT Appellees

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered July 17, 2012 In the Court of Common Pleas of Wayne County Civil Division at No(s): 242 Civil 2008

Appeal from the Judgment Entered December 12, 2012 In the Court of Common Pleas of Wayne County Civil Division at No(s): 242 Civil 2008

BEFORE: BENDER, P.J., DONOHUE, J., and MUSMANNO, J.

MEMORANDUM

BENDER, P.J.

Appellant, Gerald A. Lustig, individually and as a shareholder of Camp Weequahic, Inc., appeals from the order entered July 17, 2012, granting a renewed motion for summary judgment and granting a motion for compulsory nonsuit, both filed by Appellees, the board of directors of Camp Weequahic, Inc., et al. Additionally, Appellant appeals from the judgment entered December 12, 2012, following post-trial motions.[1] After review, we affirm.

The trial court provided the following factual history:

The case at hand revolves around Camp Weequahic, Inc. (hereinafter "camp"). At trial, Plaintiff testified that he assumed the Vice President position of the corporation in the early 1960's. Plaintiff testified that he was voted out of the Vice President position and off the Board of Directors by the majority shareholders in 1993. Plaintiff still retained his twenty-three percent ownership in the corporation's stock, [and] Gail Lustig and Joan Seffer, Plaintiff's sisters, equally shared the remaining seventy-seven percent of the company's stock.
The camp's full capacity was three hundred and sixty campers; enrollment declined steadily since 1993, and by 2008 only one hundred and thirty campers were enrolled. In 2006 to 2007, the corporation's financial condition showed that the camp was operating at a loss.
Plaintiff received a Notice of Shareholder's Meeting dated March 6, 2008; the Notice indicated that the purpose of the meeting was to discuss a proposed sale of the camp and have the shareholders vote on the sale. The Notice contained a proposed plan of asset transfer, letter of intent, and dissenter's rights. The terms of the sale indicated a purchase price of five million dollars, total financing of six million two-hundred thousand dollars, the seller takes a note of eight-hundred thousand dollars, and the purchaser's identity was confidential.
The shareholder's meeting took place on March 17, 2008. Plaintiff could not attend the meeting and had a proxy submit his vote dissenting to the sale. Plaintiff testified that he was not opposed to selling the camp, however he did not like the specific terms of the proposed sale. In fact, after receiving notice of the meeting and proposed sale, Plaintiff made an offer to buy the camp himself for five-million dollars. However, Plaintiff's offer was denied, and the proposed sale was affirmed after a shareholder vote at the meeting. Thereafter, the terms of the sale were amended to match those of Plaintiff's offer, specifically no seller financing and no contingencies for financing. After approval of the sale, Plaintiff Gerald Lusitg made an offer to buy the camp for six million dollars, which was declined. Plaintiff received his pro rata share of the sale.

Trial Court Opinion (T.C.O.), 2/25/13, at 2-3 (citations to record omitted).[2]

Prior to trial, on May 21, 2012, Appellees filed a motion for summary judgment, which the court subsequently denied. The case proceeded to a jury trial. At the conclusion of testimony, Appellees filed a renewed motion for summary judgment and a motion for compulsory nonsuit. By order entered July 17, 2012, the trial court granted both motions. On December 12, 2012, the trial court entered judgment in favor of Appellees.

The instant appeal arrives before this Court through two procedural avenues. Specifically, Appellant began his pursuit of appellate review following the trial court's July 2012 order, which both granted Appellees' renewed motion for summary judgment and granted Appellees' motion of compulsory nonsuit. In his brief, Appellant remarks that these seemingly compatible dispositions require incompatible appellate procedures. He asserts that the Rules of Civil Procedure preclude post-trial relief following a grant of summary judgment. Appellant's Brief at 6 n.1 (citing Pa.R.C.P. 227.1(c)). On the other hand, he acknowledges that an appeal from a grant of nonsuit properly lies after the entry of judgment, following a denial of a motion to remove nonsuit. See Billig v. Skvarla, 853 A.2d 1042, 1048 (Pa.Super. 2004). Notably, our Supreme Court has held that an appeal from an order denying post-trial motions can encompass a prior order entering summary judgment. K.H. v. J.R., 826 A.2d 863, 871-72 (Pa. 2003). Given the confusion created by the trial court's grant of both motions, Appellant felt compelled to file multiple notices of appeal. Both notices of appeal were timely filed following their respective order and judgment. Appellees do not contest the propriety of our review of the issues addressed in Appellant's brief and at argument. Because Appellant ultimately appealed from the entry of judgment, we conclude that the issues he seeks to appeal are properly before us.

On appeal, Appellant presents eight questions for our review:

A. Did the trial court err in granting summary judgment and entering a compulsory nonsuit with regard to Lustig's participation claim where Lustig presented sufficient evidence that the Seffers concealed negotiating their sale of the Camp and withheld ...

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