Tyler v. O'Neill
| Decision Date | 23 February 1998 |
| Docket Number | Civil Action No. 97-3353. |
| Parties | Gary C. TYLER, v. George M. O'NEILL, Michelenia O'Neill and Wm. M. Hendrickson, Inc. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Bruce S. Marks, Spector Gadon & Rosen, P.C., Philadelphia, PA, for Plaintiff.
Jeffrey B. McCarron, Christopher D. McDemus, Swartz, Campbell & Detweiler, Philadelphia, PA, for Defendants.
This case has been brought before the Court upon motion of Defendants for dismissal of Plaintiff's second amended complaint. For the reasons which follow, the motion shall be granted in part and denied in part.
According to the allegations in plaintiff's complaint, defendant, Wm. M. Hendrickson, Inc. ("Hendrickson") is a Pennsylvania corporation engaged in the business of repairing railway cars with its principal place of business in Philadelphia. In 1981, Defendant George O'Neill purchased 90% of the stock of Hendrickson and left his employment with General Electric to take over the company. In reliance upon O'Neill's representation that he would make more money investing in Hendrickson than he would if he invested in GE, plaintiff purchased some 400 shares or 10% of Hendrickson for $20,000 at about the same time.
Hendrickson purportedly grew and by 1988, had shareholders' equity of $927,000. From time to time, Plaintiff received dividend payments from Hendrickson as a return on his investment and interest in the company. Beginning in the late 1980's or early 1990's, George O'Neill told plaintiff that the company would be relocating to a new facility which it was building on land which it was purchasing at 7700 Holstein Avenue in Philadelphia. Unbeknownst to plaintiff, however, it was George and Michelenia O'Neill who, backed by a guarantee from Hendrickson, Inc., financed the purchase of the land and the construction of the building and who took title to both the property and the facility. Thereafter, the O'Neills charged and received from Hendrickson nearly $1 million in rent from 1991 through June, 1997.
The complaint further alleges that in 1997, plaintiff learned for the first time that between 1988 and 1990, Hendrickson paid George O'Neill substantial bonuses and consulting fees in excess of $500,000 and that the O'Neills falsely represented Mr. O'Neill to be the company's sole owner in loan applications, income tax returns and in filings with the Bankruptcy Court pursuant to a corporate reorganization so as to conceal the company's true financial condition from him. Following Mr. Tyler's relocation to Wilmington, DE in 1996 to assume employment with Hendrickson, he received financial statements reflecting that the total shareholders' equity had dropped to $43,233. When plaintiff tried to learn about the company's finances and what caused the reduction in shareholders' equity, George O'Neill terminated him. Plaintiff contends that he believes George O'Neill has diverted other funds from the company to himself and that further demand on the company or O'Neill for an inspection of the company's books and records would be futile.
On the basis of these alleged facts, Mr. Tyler seeks relief against both George and Michelenia O'Neill and Hendrickson, Inc. for violations of the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. § 1961, et. seq., the Pennsylvania Business Corporation Law, 15 Pa.C.S. § 1508, the Pennsylvania Unfair Trade Practices and Consumer Protection Statute and the Pennsylvania Wage Payment and Collection Law, breach of fiduciary duty, fraud and civil conspiracy. Defendants move to dismiss Count I in its entirety as moot and the remaining counts for failure to state a claim upon which relief can be granted.
It is equally clear that the issue of the sufficiency of a pleading may be raised by the filing of a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) or through a motion for a more definite statement under Rule 12(e). In resolving a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir.1990). In so doing, the court must accept as true the facts alleged in the complaint, together with all reasonable inferences that can be drawn therefrom and construe them in the light most favorable to the plaintiff. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir.1990); Hough/Loew Associates, Inc. v. CLX Realty Co., 760 F.Supp. 1141 (E.D.Pa.1991). The court's inquiry is directed to whether the allegations constitute a statement of a claim under Rule 8(a) and whether the plaintiff has a right to any relief based upon the facts pled. Dismissal under Rule 12(b)(6) for failure to state a claim is therefore limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved. Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir.1988); Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3rd Cir.1985), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985).
Defendants first assert that Plaintiff's claim for breach of the Pennsylvania Business Corporation Law, 15 Pa.C.S. § 1508 should be dismissed as moot. We cannot agree.
It is clear that under 15 Pa.C.S. § 1508(b), Every shareholder shall, upon written verified demand stating the purpose thereof, have a right to examine in person or by agent or attorney, during the usual hours for business for any proper purpose, the share register, books and records of account, and records of the proceedings of the incorporators, shareholders and directors and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to the interest of the person as a shareholder. In every instance where an attorney or other agent is the person who seeks the right of inspection, the demand shall be accompanied by a verified power of attorney or other writing that authorizes the attorney or other agent to so act on behalf of the shareholder. The demand shall be directed to the corporation at its registered office in this Commonwealth or at its principal place of business wherever situated.
Authority to institute a legal proceeding to enforce this right of inspection is conferred upon a shareholder (or attorney or agent acting on behalf of a shareholder) in § 1508(c). Prior to instituting such a proceeding, the shareholder first must establish that the purpose for which inspection is sought is proper and that he or she has complied with the requirements in § 1508(b) for making an inspection demand. Thereafter, the burden of proving that the inspection was for an improper purpose falls on the corporation. 15 Pa.C.S. § 1508(c); Goldman v. Trans-United Industries, Inc., 404 Pa. 288, 171 A.2d 788 (1961).
In this case, plaintiff alleges that by letter from his attorney to Defendant O'Neill in his capacity as President of Wm. M. Hendrickson, Inc. dated April 9, 1997, he made a demand to inspect and copy the company's books and records pursuant to 15 Pa.C.S. § 1508. (Second Amended Complaint, ¶ 79 and Exhibit "A" thereto). That letter recited the purpose for the inspection as being "... to determine the rights and liabilities of Mr. Tyler as a shareholder, including, but not limited to, a determination of the assets and liabilities and the income and expenses of the Corporation over the past 10 years ...," and was accompanied by a verified power of attorney executed by Mr. Tyler. (Second Amended Complaint, Exhibit "A"). The Complaint further avers that although Mr. O'Neill initially responded that the Company agreed to the inspection, when plaintiff's accountant and attorney appeared for the inspection on May 2, 1997, O'Neill refused to permit it. (Second Amended Complaint, ¶ s 80-81, 97). Although certain records were produced after the complaint in this matter was filed, numerous records have not been produced. (2d Am.Compl., ¶ 98).
We find these allegations, viewed in the light most favorable to the plaintiff as the non-movant, to be sufficient to state a claim for a violation of Section 1508 of the Business Corporations Law, notwithstanding the vagueness of plaintiff's averment that "certain records were produced subsequent to the filing of the complaint." As it remains unclear to this Court as to whether an inspection was permitted of all of those books and records of the Company which plaintiff requested, Count I of the second amended complaint cannot be dismissed as moot based on the existing record. Count I shall therefore be permitted to stand.
Defendants next move to dismiss Counts II through VII for the reason that claims which involve harm to the corporation must be maintained by the corporation — not by a shareholder as an individual. While we would agree that at first blush plaintiff's complaint is...
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