The URL can be used to link to this page

Home My WebLink About03-0929PHELARO OF DERRY TOWNSHIP, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. APPLICATION OF PNC BANK, N.A., EXECUTOR OF THE ESTATE OF WILLIAM G. MAGARO, DECEASED, FOR APPOINTMENT OF CUSTODIAN(S) NOW COMES applicant, PNC Bank, N.A., Executor of the Estate of William G. Magaro, deceased (hereinafter "PNC"), by and through its attorneys, Keefer Wood Allen & Rahal, LLP, as a shareholder of Phelaro of Derry Township, Inc. (hereinafter "Phelaro of Derry"), to request this Honorable Court to appoint one or more persons as custodian(s) of and for Phelaro of Derry, pursuant to 15 Pa.C.S. § 1767(a), averring as follows: 1. Phelaro of Derry is a Pennsylvania business corporation, engaged in the restaurant and tavern business, with its registered address at 32 West High Street, Carlisle, Cumberland County, Pennsylvania. 2. PNC is the duly appointed Executor of the Estate of William G. Magaro, deceased (hereinafter "Estate"). Pennsylvania. According to the terms of the Will, PNC has the right to manage the business PNC Bank has local offices at 4242 Carlisle Pike, Camp Hill, affairs of the Estate. 4. The Estate holds ten percent (10%) of the issued and outstanding common stock of Phelaro of Derry. 5. Sixty-Six and Eighty-Eight Hundredths pement (66.88%) of the issued and outstanding common stock ofPhelaro of Derry is owned or controlled by Richard E. Phelan (hereinafter "Phelan"), the President of Phelaro of Derry. 6. The remaining issued and outstanding stock is owned by the Estate of David Magaro, deceased, and Richard Magaro. 7. Phelan's wife, Linda Phelan, serves as the Secretary/Treasurer ofPhelaro of Derry. 8. Prior to the death of William G. Magaro (hereinafter "decedent") in 1990, the decedent, David Magaro, Richard Magaro, and Phelan served as the only members of Phelaro of Derry's board of directors, and they commonly found themselves voting in opposition to each other on a variety of matters important to the proper operation ofPhelaro of Derry. 9. Subsequent to the decedent's death, PNC has been excluded from all meaningful shareholder participation in Phelaro of Derry's affairs and cannot prevent harm to the corporation caused by Phelan's improper operation of Phelaro of Derry. Phelan's mismanagement includes, but is not limited to, the following: (a) Failing to call and conduct meetings of the shareholders, including meetings to elect successors to directors whose terms have expired or would have expired upon the qualification of their successors; -2- (b) Failing to call and conduct meetings of the board of directors, including meetings to appoint officers of Phelaro of Derry; (c) Permitting the unauthorized withdrawal of corporate funds; (d) Committing waste ofPhelaro of Derry's assets; (e) Misapplying Phelaro of Derry's assets; (f) Permitting self-dealing by directors and officers of Phelaro of Derry and permitting directors and officers ofPhelaro of Derry to act contrary to and in competition with interests of Phelaro of Derry in payment of exorbitant consulting fees to a company wholly owned by Phelan, Phelaro of Derry's president and a director; (g) Permitting Phelaro of Derry's officers and director to breach their fiduciary duties of loyalty and good faith; and (h) Excluding PNC from all meaningful shareholder participation in Phelaro of Derry's affairs and profits. 10. PNC believes and therefore avers that the deadlock in electing successor directors and the other illegal, oppressive or fraudulent acts of Phelan and/or others in control of Phelaro of Derry will continue to result in harm to Phelaro of Derry in the months and years ahead unless the Court intervenes to remove the deadlock and avert the illegal, oppressive or fraudulent acts of Phelan and/or others in control of Phelaro of Derry through the appointment of a custodian or custodians. -3- 11. More specifically, PNC believes that Phelaro of Derry has been harmed or faces irreparable potential harm as follows: (a) continued operation at a loss, viz., 2001 net loss of $5,799.~ (b) continued inability to pay shareholder dividends; (c) continued waste of Phelaro of Derry's assets and self-dealing by officers and directors in payment of exorbitant consulting fees to Spirit Merchant & Grocer, Inc.; (d) continued breaches of fiduciary duties of loyalty and good faith by directors and officers ofPhelaro of Derry; and (e) continuance of a deadlock situation in the election of successor directors and appointment of officers. WHEREFORE, applicant PNC respectfully requests this Honorable Court to grant the following reliefi (a) That the Court promptly schedule a hearing to receive evidence in further support of this Application; (b) That the Court appoint an impartial person or persons as custodian(s) ofPhelaro of Derry as prescribed by 15 Pa.S.C. § 1767(a); (c) That the custodian or custodians so appointed be given all the rights, powers and title of a receiver appointed under Subchapter G of Chapter 19 The net loss for 2002 has not yet been revealed to PNC or its counsel by Phelan. -4- of the Business Corporation Law of 1988, as amended, 15 Pa.C.S. § 1501, et seq., but the authority of that custodian or custodians shall be to continue the business of the corporation and not to liquidate its affairs and distribute its assets except when the Court shall otherwise order. See, 15 Pa.C.S. §§ 1767(c) and 1981(a); (d) That the custodian or custodians so appointed shall be emitled to such compensation, to be paid by Phelaro of Derry, as shall be fixed by this Court; (e) That this Court award PNC the costs of this suit, including attorney's fees; and (f) That the Court award such other and further relief as the Court deems just and proper. Dated: February 27, 2003 -5- Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP By ~C~2~ I.D. # 23172 Elyse E. Rogers I.D. # 41274 John A. Feichtel I.D. # 77426 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 717-255-8010, 717-612-5801 and 717-255-8005 Attorneys for Applicant VERIFICATION The undersigned David A. Brown hereby verifies and states that: 1. herein; 2. behalf; 3. He is Vice President of PNC Bank, N.A., applicant He is authorized Eo make ~his verification on its The facts set forth in the foregoing application are true and correct to the best of his knowledge, information and belief; and 4. He is aware that false statements herein are made subject to the penalties of 18 Pa.C.S.A. § 4904, relating to unsworn falsification to authorities David A. Brown Date: February 27 , 2003 IN RE: PHELARO OF DERRY TOWNSHIP, INC. 1N THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03-929 Civil Term ACCEPTANCE OF SERVICE -- FOR-- APPLICATION OF PNC BAiN'K, N.A., EXECUTOR OF THE ESTATE OF WILLIAM G. MAGARO, DECEASED, FOR APPOINTMENT OF CUSTODIAN(S) Being authorized so to do, the undersigned attomey hereby accepts service on behalf of Richard and Linda Phelan, both of whom are shareholders, directors, and/or officers of the corporation referenced above, of a tree and correct copy of PNC Bank's application for the appointment of custodian(s). Dated: March~---~, 2003 STEVENS & LEE 133' ~~ Mark D. Bradshaw I.D. # 61975 P. O. Box 11670 Harrisburg, PA 17108 717-561-5258 /N RE: FAST EDDIEs BILLIARD PARLOR & SALOON, INC. IN RE: PHELARo, INC. IN RE: PHELARo OF DERRy TOWNSH/P,/NC. tN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION . LAW No. 03-927 Civil Term · tN THE COVRT OF COtdMON PL .~_ S ~ CtnVmERLANO COUNTy, PENN~.VAt~Z~ . CWIL ACTION_ LAW ~:.', ~ No. 0:3-928 Civil Te~ - ~ T~ CO~T OF COMMON PLEAS OF C~BE~~ CO~Ty, PE~SYLVAN~ CIVIL ACT/ON. LAW No. 03-929 Civil Term MOTION FOR HEARING NOW COMEs applicant, PNC Bank, N.A., Executor of the Estate of William G. Magaro, deceased (hereinafter "PNC"), to request this Honorable Court to schedule a consolidated hearing in the three actions referenced above and to consider the applications recently filed with the Court, averring as follows: 1. In each of the three actions referenced above, PNC has filed a request for the appointment ora custodian by the Court, pursuant to 15 Pa.C.S. § 1767(a). 2. That statutory provision reads in pertinent part "... upon application of any shareholder, the court may appoint one or more persons to be custodians of and for any business corporation .... " 3. There are no procedures set forth in that statute or in the Pennsylvania Rules of Civil Procedure for custodianship actions.~ 4. PNC's three applications are related, in that the same shareholders, officers and directors are involved in all three corporations, namely, PNC and Richard and Linda Phelan. 5. A related proceeding is already underway before this Court, specifically, an involuntary dissolution proceeding for Gingerbread Man of Shippensburg, Inc., in which the shareholders are PNC and Richard Phelan. 6. The Honorable J. Wesley Oler has convened three heatings in that dissolution proceeding, and two more heatings are scheduled to be held before Judge Oler on June 16 and June 18, 2003. WHEREFORE, PNC respectfully requests this Honorable Court to schedule a consolidated heating to consider PNC's applications for the appointment ora custodian, pursuant This type of action is not a shareholder-derivative action addressed by Pa. R. Civ. P. 1506. -2 - to 15 Pa.C.S. § 1767(a). Prothonotary this date. Three suggested orders, one in each case, are being forwarded to the Dated: April 15, 2003 Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Charles W. Rubendall II I.D. # 23172 Elyse E. Rogers I.D. # 41274 John A. Feichtel I.D. # 77426 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 717-255-8010, 717-612-5801 and 71. 7-255-8005 Attorneys for applicant -3- CERTIFICATE OF SERVICE I, Charles W. Rubendall II, Esquire, one of the attorneys for applicant, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing tree and correct copies of the same in the United States mail, first-class postage prepaid, addressed as follows: Mark D. Bradshaw, Esquire Stevens & Lee P. O. Box 11670 Harrisburg, PA 17108 Lowell R. Gates, Esquire Gates Halbruner & Hatch, P.C. Suite 100 1013 Mumma Road Lemoyne, PA 17043-1144 KEEFER WOOD ALLEN & RAHAL, LLP By ~/4~,,,..~~ Charles W. Rubendall 1/ Dated: April 15, 2003 IN RE: PHELARO OF DERRY TOWNSHIP, INC. IN THE COURT OF C, OMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-929 CIVIL TERM ORDER OF COURT AND NOW, this 29th day of April, 2003, upon consideration of Applicant's application for the appointment of a custodian pursuant to 15 Pa. C.S. §1767(a), a hearing is scheduled for Thursday, July 24, 2003, at 9:30 a.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, Charles W. Rubendall, II, Esq. Elyse E. Rogers, Esq. John A. Feichtel, Esq. 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorneys for Applicant Mark D. Bradshaw, Esq. P.O. Box 11670 Harrisburg, PA 17108 Lowell R. Gates, Esq. Suite 100 1013 Mumma Road Lemoyne, PA 17043-1144 esley Ol~,~¥r., - t.~ J. :rc VlNVA'%,SNNTd ;JJ'~O,'.') F'!"i'~:¢'q~;:'-'i','~ RD IN RE: PHELARO OF DERRY TOWNSHIP, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 03-929 CIVIL TERM IN RE: APPLICATION FOR THE APPOINTMENT OF A CUSTODIAN PURSUANT TO 15 PA. C.S. §1767(a) ORDER OF COURT AND NOW, this 14th day of July, 2003, upon consideration of the attached letter t~om Mark D. Bradshaw, Esq., the hearing previously scheduled for July 24, 2003, is continued generally. COUNSEL ARE directed to contact the court if they desire a hearing in this matter or ifa settlement is reached. BY THE COURT, Charles W. Rubendall, II, Esq. Elyse E. Rogers, Esq. John A. Feichtel, Esq. 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 Attorneys for Applicant Mark D. Bradshaw, Esq. P.O. Box 11670 Harrisburg, PA 17108 Lowell R. Gates, Esq. Suite 100 1013 Mumma Road Lemoyne, PA 17043-1144 :re STEVENS & LEE A PROFESSIONAL CORPORA'~ON ~. O, Box I1670 Harrisburg, PA 17108-1670 (717) 561-5242 Fax (717) 561-5207 www.stevenslee.com Direct Dial: (717) 561-5258 Email: mdb~stevenslee.com Direct Fax: (610) 371-7362 July 11, 2003 Honorable J. Wesley Oler, Jr. Cumberland County Court of Common Pleas High and Hanover Streets Carlisle, PA 17112 Re: Gingerbread Man Custodianship Applications Dear Judge Oler: This correspondence is intended to confirm my telephonic advice to your assistant, Ruth, that the Magaro Estate and Richard Phelan are engaged in global settlement negotiations which would obviate the need for further proceedings before the Court with regard to the several open actions between these parties. At opposing counsel, Chip Rubendall's suggestion, we request that the Court continue generally the custodianship hearings which had been scheduled for Thursday, July 24, 2003, unless and until the parties advise the Court that settlement negotiations have broken down and that the matter should be rescheduled. We are hopeful that this entire matter will soon be resolved without need for further Court involvement. Very truly yours, STEV_ENS~ ~'~E MDB:alsm cc: Mr. Richard E. Phelan Charles W. Rubendall, II, Esquire · Cherry Hill · Harrisburg · Reading - Scranton · Lancaster · Lehigh Valley · Valley Forge · Wilkes-Barre · Philadelpkia · Wilmington 07/I0/03/SL1 366350vi/00000.000 IN RE: PHELARO OF DERRY TOWNSHIP, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 03-929 Civil Term PRAECIPE TO DISCONTINUE TO: Curt Long, Prothonotary Kindly mark the docket for the above-captioned action to reveal that it has been settled, discontinued and ended, with prejudice. Respectfully submitted, KEEFER WOOD ALLEN & RAHAL, LLP Dated: December Q~ , 2003 By Charles W. Rubendall II Elyse E. Rogers John A. Feichtel 210 Walnut Street P. O. Box 11963 Harrisburg, PA 17108-1963 717-255-8010, 612-5801 and 255-8005 Attorneys for applicant CERTIFICATE OF SERVICE I, Charles W. Rubendall II, Esquire, one of the attorneys for applicant, hereby certify that I have served the foregoing paper upon counsel of record this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Mark D. Bradshaw, Esquire Stevens & Lee P. O. Box 11670 Harrisburg, PA 17108 KEEFER WOOD ALLEN & RAJ/AL, Charles W. Rubendall II LLP Dated: December ~, 2003