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Home My WebLink About90-2424 Civil (2)MICHAEL E. MEAGHER IN THE COURT OF COMMON PLEAS OF to the use of CUMBERLAND COUNTY, PENNSYLVANIA RUSSELL L. WANTZ, JR. Plaintiff CIVIL ACTION - LAW V. WILLIAM R. COOPER, JR. and MARY BETH HELMS COOPER, NO. 2424 CIVIL 1990 Defendants IN RE: PLAINTIFF'S MOTION FOR POST -TRIAL RELIEF BEFORE OLER, J. ORDER OF COURT AND NOW, thisA tly of March,1993, upon careful review of the entire record and arguments of counsel, Plaintiff's Motion for Post -Trial Relief is DENIED. BY THE COURT, W J. esley Oler, J. Audrey E. Woloshin, Esq. 345 East Market Street York, PA 17403 Counsel for Plaintiff Anna Marie Sossong, Esq. 204 State Street Harrisburg, PA 17101 Garnishee Thomas R. Miller, Esq. 204 State Street Harrisburg, PA 17101 Attorney for Garnishee :rc MICHAEL E. MEAGHER IN THE COURT OF COMMON PLEAS OF to the use of CUMBERLAND COUNTY, PENNSYLVANIA RUSSELL L. WANTZ, JR. Plaintiff CIVIL ACTION - LAW V. WILLIAM R. COOPER, JR. and MARY BETH HELMS COOPER, NO. 2424 CIVIL 1990 Defendants IN RE: PLAINTIFF'S MOTION FOR POST -TRIAL RELIEF BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. At issue in the present case is whether Plaintiff's Motion for Post -Trial relief should be granted following the Court's finding in favor of Garnishee in a garnishment adjudication.' The motion asserts that the Court erred in the following respects: (1) "in finding that Cooper -Helms Chevrolet, Inc. is a closely held corporation under the laws of Pennsylvania...";' (2) "in holding that the transfer restrictions on the stock in Cooper -Helms Chevrolet, Inc. were not applicable ...";3 (3) "in holding that the stock in Cooper -Helms Chevrolet, Inc. was a type of stock commonly recognized in any area which it is issued or dealt in as a medium for investment ...";' (4) "in holding that seizure of the stock certificate in Cooper -Helms Chevrolet, Inc. was necessary to attach 1 Meager v. Cooper, No. 2424 Civil 1990, Slip op. (Cumberland Co. January 19, 1993). 2 Plaintiffs Motion for Post -Trial Relief, paragraph 1. s Plaintiff's Motion for Post -Trial Relief, paragraph 2. ' Plaintiff's Motion for Post -Trial Relief, paragraph 3. NO. 2424 CIVIL 1990 the stock ...";5 (5) "in requiring seizure of the stock certificate in Cooper -Helms Chevrolet, Inc. to effectuate attachment when Garnishee failed to answer Plaintiff's Interrogatories in Attachment fully and completely...";' (6) "in permitting Garnishee to avoid attachment of the stock certificates by requiring actual seizure of certificates when Garnishee failed to identify the property in her possession in her Answers to Plaintiffs Interrogatories in Attachment ...";' (7) "by failing to rule that the service of the writ of execution upon Garnishee attached all property of defendant which was in Garnishee's possession, specifically the stock certificate representing 1,535 shares of stock in Cooper -Helms Chevrolet, Inc. ...";8 (8) "by failing to rule that Garnishee abrogated her duty to preserve the status quo and to do nothing to prejudice the rights of Plaintiff ...";9 (9) "in failing to rule that Plaintiff had levied and attached the 1,535 shares of stock in Cooper -Helms Chevrolet, Inc. which was in Garnishee's possession on or about August 15, 1990, upon service of the Writ of Execution upon Garnishee ";` (10) "in failing to rule that Plaintiff was entitled to judgment for the specific s Plaintiff's Motion for Post -Trial Relief, paragraph 4. s Plaintiff's Motion for Post -Trial Relief, paragraph 5. 7 Plaintiff's Motion for Post -Trial Relief, paragraph 6. s Plaintiff's Motion for Post -Trial Relief, paragraph 7. s Plaintiff's Motion for Post -Trial Relief, paragraph 8. io Plaintiff's Motion for Post -Trial Relief, paragraph 9. 2 NO. 2424 CIVIL 1990 property in Garnishee's possession at the time the writ was served...";` and (11) "in failing to enter an in personam money judgment in the amount of Two Hundred Thousand ($200,000.00) Dollars against Garnishee in light of her failure to make the property of defendant in her possession available for execution as a result of her wrongful relinquishment of such property to a third party ...."12 After a careful review of the entire record and consideration of the arguments of counsel, the Court is convinced that the matter was properly adjudicated. Consequently, the prior opinion filed in this matter on January 19, 1993,13 is incorporated herein and made part of this opinion. In addition, two matters will be addressed herein in the interest of clarification or amplification. First, with respect to Plaintiffs assertion that the Court erred in finding that Cooper -Helms Chevrolet, Inc., was a close corporation, it must be noted that no such finding was made. Under Pennsylvania law, even the stock of a close corporation can be a security, subject to the physical seizure rule applied in the Court's earlier opinion; this principle was utilized in the opinion to support the Court's holding, but did not represent a finding of fact as to the corporation here involved.14 11 Plaintiff's Motion for Post -Trial Relief, paragraph 10. 12 Plaintiffs Motion for Post -Trial Relief, paragraph 11. 13 See note 1 supra. 14 The Court did find that the corporation's stock certificate was a security within the meaning of 13 Pa. C.S. §8102. 3 NO. 2424 CIVIL 1990 Second, Plaintiff argues that Cooper -Helms Chevrolet, Inc., is more analogous to a professional corporation than a close corporation because of the restrictions imposed upon potential investors by General Motors. It is noted by Plaintiff that stock in professional corporations has been found to be outside the definition of a security contained in 13 Pa. C.S. §8102. See Gulf Mortgage and Realty Investments v. Allen, 282 Pa. Super. 230, 234, 422 A.2d 1090, 1092 (1980). For this reason, it is argued that the stock certificate at issue in the instant matter is not subject to the physical seizure rule set forth in 13 Pa. C.S. §8713.15 The stock certificate at issue does not, of course, represent an interest in a professional corporation, and the Court has found as a factual matter that it met the definition of a security as contained in 13 Pa. C.S. §8102. Moreover, notwithstanding the Gulf Mortgage holding that shares of stock in a professional corporation are not securities within the definition of 13 Pa. C.S. §8102, the physical seizure rule appears to apply to stock in professional corporations. On the subject of this issue, Judge Spaeth stated that, while shares of stock in a professional corporation are not securities as defined by 13 Pa. C.S. §8102, "the considerations that support seizure of securities within the Code support seizure here .... Furthermore, a valid levy cannot be made unless the shares have been seized by a public officer." Gulf Mortgage and Realty Investments v. Allen, 282 Pa. Super. 230, 236, 422 A.2d 1090, 1093 (1980). As 15 Plaintiff's Brief in Support of Motion for Post -Trial Relief at 5, 9. 4 NO. 2424 CIVIL 1990 noted in our previous opinion, physical seizure of the stock certificate at issue in this matter was not accomplished. Therefore, a valid levy can not be considered to have occurred. Based upon the foregoing, the following order will be entered: ORDER OF COURT AND NOW, this' day of March, 1993, upon careful review of the entire record and arguments of counsel, Plaintiffs Motion for Post -Trial Relief is DENIED. Audrey E. Woloshin, Esq. 345 East Market Street York, PA 17403 Counsel for Plaintiff Anna Marie Sossong, Esq. 204 State Street Harrisburg, PA 17101 Garnishee Thomas R. Miller, Esq. 204 State Street Harrisburg, PA 17101 Attorney for Garnishee :rc BY THE COURT, s/ J. Wesley Oler, Jr J. Wesley Oler, Jr. J. 5