Linde, S. v. Linde Enterprises, Inc.

J-S02028-15

2015 PA Super 136

SCOTT F. LINDE, SHAREHOLDER AND IN THE SUPERIOR COURT OF
DIRECTOR OF LINDE ENTERPRISES, INC. PENNSYLVANIA
AND JOHN PIEPOLI, DIRECTOR OF LINDE
ENTERPRISES, INC.

Appellants

v.

LINDE ENTERPRISES, INC., BARBARA
LINDE, ERIC LINDE, AND GARY LINDE

Appellees No. 568 EDA 2014

Appeal from the Order Entered January 10, 2014
In the Court of Common Pleas of Wayne County
Civil Division at No(s): 18-CV-2013; 109-CV-2013

BEFORE: MUNDY, OLSON and WECHT, JJ.

OPINION BY OLSON, J.: FILED JUNE 09, 2015

Appellants, Scott F. Linde, shareholder and director of Linde

Enterprises, Inc., and John Piepoli, director of Linde Enterprises, Inc., appeal

from the order entered on January 10, 2014. The subject order denied

Appellants’ motions for partial summary judgment and granted the joint

motion for summary judgment that was filed on behalf of Linde Enterprises,

Inc., Barbara Linde, Eric Linde, and Gary Linde (hereinafter, collectively, “the

Defendants”). We affirm.

On January 14, 2013, Appellants filed a “Complaint in Equity for a

Declaratory Judgment and Injunctive Relief” against the Defendants at

docket number 18-CV-2013. Within the complaint, Appellants averred that:

Linde Enterprises, Inc. (hereinafter “LEI”) is a Pennsylvania corporation, with
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its principal place of business in Wayne County, Pennsylvania; Scott Linde is

“both [] a shareholder and director of [LEI];” and John Piepoli is “a member

of the board of directors of [LEI].” Appellants’ Complaint, 1/14/13, at ¶¶ 1-

3. According to the complaint, on December 3, 2012, Barbara Linde, Eric

Linde, and Scott Linde together owned 100% of the total, 735 shares that

were issued by LEI. Id. at ¶ 7. On that date, LEI’s 735 shares were owned

as follows: Scott Linde owned 320 shares of LEI common stock; Barbara

Linde owned 115 shares of LEI common stock; and, Eric Linde owned 300

shares of LEI common stock. Id.

Pursuant to LEI’s bylaws, the annual LEI shareholders’ meeting was to

occur on the second Tuesday of March; special shareholders’ meetings could

be called “by ten [days’] notice given by the President or a majority of the

outstanding shares.” Id. at ¶ 10; LEI Bylaws, dated 2/7/97, at Art. III,

¶¶ 1-2;1 see also 15 Pa.C.S.A. § 1704 (titled: “[p]lace and notice of
____________________________________________

1
Article III, ¶¶ 1-2 of LEI’s bylaws read in full:

(1) Stockholders will meet annually on the second Tuesday
of March and this meeting shall be the regular annual
meeting at the registered office of the Corporation or at
such other place or places as may from time to time be
selected by the President of the Corporation.

(2) Stockholders may meet specially upon being called by
ten (10) days[’] notice given by the President or a majority
of the outstanding shares at the registered office of the
Corporation or at such other place or places as may from
time to time be selected by those authorized to call a
special meeting.
(Footnote Continued Next Page)

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meetings of shareholders;” declaring: “Notice in record form of every

meeting of the shareholders shall be given by, or at the direction of, the

secretary or other authorized person to each shareholder of record entitled

to vote at the meeting at least: (1) ten days prior to the day named for a

meeting that will consider a fundamental change . . . ; or (2) five days prior

to the day named for the meeting in any other case”). Notwithstanding the

bylaws and Pennsylvania’s Business Corporation Law (hereinafter “BCL”)

notice statutes, Barbara and Eric Linde called a special meeting of LEI’s

shareholders without providing Scott Linde with any notice of the special

meeting. Appellants’ Complaint, 1/14/13, at ¶ 9.

On December 3, 2012, Barbara and Eric Linde attended the special

shareholders’ meeting; Scott Linde was absent. During this special meeting,

Barbara and Eric Linde purported to adopt the following resolutions:2

a) Scott [] Linde, an officer, director, employee and
shareholder of the Corporation is hereby removed as an
officer[,] director[,] and employee of the Corporation as a
result of his fraudulent conduct with respect to the

_______________________
(Footnote Continued)

LEI Bylaws, dated 2/7/97, at Art. III, ¶¶ 1-2.
2
We note that Barbara and Eric Linde’s attendance at the December 3, 2012
special shareholders’ meeting constituted a quorum under LEI’s bylaws. See
LEI Bylaws, dated 2/7/97, at Art. III, ¶ 4 (“[a] majority of the outstanding
voting shares shall constitute a quorum and a majority of a quorum shall
have full power to decide any question coming before the meeting, whether
or not notice of such question is specifically given”).

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Corporation and the illegal use and abuse of the
Corporation’s assets;

b) Robert Hessling, an employee of the Corporation is
hereby removed as an employee of the Corporation as a
result of his fraudulent conduct with respect to the
Corporation and the illegal use and abuse of the
Corporation’s assets; and

c) Barbara Linde is elected to serve as President and
Secretary of the Corporation.

Id. at ¶ 8; see also Shareholder Resolution, 12/3/12, at 1.

Ten days later – on December 13, 2012 – LEI conducted a

shareholders’ meeting and a directors’ meeting. Appellants admit that the

requisite (and proper) ten-day notice of the shareholders’ meeting was

provided to all these shareholders prior to the December 13, 2012 meeting.3

Appellants’ Complaint, 1/14/13, at ¶ 24. Appellants also admit that Scott

Linde attended the December 13, 2012 shareholders’ meeting. Appellants’

Answer to Joint Motion for Summary Judgment, 12/11/13, at 3. The

____________________________________________

3
The Defendants claim that the December 13, 2012 meeting constituted the
annual shareholders’ meeting; Appellants claim that the December 13, 2012
meeting constituted a special shareholders’ meeting. However, Appellants
have not raised any claim that the notice was deficient for the December 13,
2012 meeting or that the subject matter of the meeting was inappropriate or
inadequately disclosed. Thus, for purposes of this appeal, it matters not
whether the December 13, 2012 shareholders’ meeting was an annual or a
special shareholders’ meeting.

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minutes from December 13, 2012 shareholders’ meeting declare the

following:4

Meeting was called to order at 1:00 PM on December 13,
2012 by Barbara Linde. In attendance were Barbara Linde,
Eric Linde and Scott Linde.

...

1. Motion was made by Barbara Linde and seconded by Eric
Linde to affirm the resolution for the special shareholders
meeting on December 3, 2012. Voting for the motion was
Barbara Linde and Eric Linde and voting against the motion
was Scott Linde. Motion Passed.

2. Motion was made to elect the Board of Directors for the
remaining calendar year 2012 and for 2013 or until the next
annual meeting to be held. . . .

Individual Ballots were distributed. The following four
individuals were nominated to fill three positions on the
Board of Directors: Eric Linde, Barbara Linde, Gary Linde
and Scott Linde.

Voting was as follows: 415 votes for Eric Linde; 415 votes
for Barbara Linde and 415 votes for Gary Linde. Scott Linde
received one vote for each director position.

It was resolved that based upon the voting, the Board of
Directors for the remaining calendar year 2012 and for 2013
or until the next annual meeting to be held shall consist of
Eric Linde, Barbara Linde and Gary Linde. Motion passed.

____________________________________________

4
The December 13, 2012 shareholders’ meeting minutes were amended on
March 6, 2013.

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December 13, 2012 LEI Shareholders’ Meeting Minutes at 1 (internal italics

omitted).

As Appellants’ complaint claimed, all of the above actions were invalid,

as Scott Linde was not given notice of the initial, December 3, 2012 special

shareholders’ meeting. Therefore, according to Appellants, the December 3,

2012 special shareholders’ meeting was illegal and the resolutions passed

during the December 3, 2012 shareholders’ meeting were “null and void.”

Appellants’ Complaint, 1/14/13, at ¶¶ 18 and 25-26. Further, Appellants

claimed, since the resolutions were void, the resolutions could not have been

ratified at the December 13, 2012 shareholders’ meeting. Id. Appellants

also claimed that “Scott [Linde] never gave his written consent to the

[December 3, 2012 r]esolution . . . as required by [15 Pa.C.S.A. § 1766]

and therefore the [r]esolution is void ab initio, for lack of written consent to

the [r]esolution by all shareholders without a meeting.” Id. at ¶ 16

(emphasis in original). Finally, Appellants claimed that the December 13,

2012 election of Eric and Gary Linde to the board of directors was invalid

because “Scott Linde and John Piepoli were not removed from their

position[s]” as directors of LEI and “there were no vacancies on the Board to

which Eric Linde and Gary Linde could be elected.” Id. at ¶¶ 25-26.

Appellants did not request monetary relief in their complaint. Rather,

Appellants requested “a judicial determination that the actions of [LEI] and

[d]efendants Barbara Linde and Eric Linde taken on December 3, 2012, be

declared null and void . . . and that all actions taken by Barbara Linde, Eric

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Linde and Gary Linde as the Board of Directors of [LEI] . . . be declared null

and void.” Id. at “Wherefore” Clause.

On January 31, 2013 – which was approximately two weeks after

Appellants filed the above complaint – LEI’s shareholders convened another

special shareholders’ meeting. The minutes from that special meeting

reflect that Barbara and Eric Linde appeared at the meeting in person and

that Scott Linde was represented at the meeting via proxy. January 31,

2013 LEI Shareholders’ Meeting Minutes at 1.5 In relevant part, the minutes

from the January 31, 2013 meeting declare:

The first order of business was the discharge of all currently
serving directors, except for Barbara J. Linde and the
election of new directors. The following individuals were
nominated to serve with Barbara J. Linde as directors of the
Corporation:

Eric R. Linde
Gary Linde

Upon motion duly made, seconded and by a vote of 415 in
favor and 320 against, it was,

RESOLVED, all currently serving directors, except for
Barbara J. Linde, are immediately discharged and the
above-named individuals are elected as the directors of the
Corporation to serve with Barbara J. Linde in accordance
with the Bylaws until the next annual election of directors

____________________________________________

5
The minutes from the January 31, 2013 special shareholders’ meeting were
amended on March 4, 2013 “to clarify the resolution removing directors.”
January 31, 2013 LEI Shareholders’ Meeting Minutes at 1.

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and until successors are duly-elected and have qualified or
until earlier death, resignation or removal.

The next order of business was ratification of prior
transactions taken since December 13, 2012.

Upon motion duly made, seconded and by a vote of 415 in
favor and 320 against, it was,

RESOLVED, that all resolutions, acts and proceedings of
Barbara J. Linde, Gary Linde, and Eric R. Linde, acting as
Officers and Directors of the Corporation, taken since
December 13, 2012 to present be and hereby are approved,
ratified, adopted and made the acts and deeds of the
Corporation and any technical defects in any actions or
meetings taken by these specific Directors and Officers of
the Corporation since December 13, 2012 be and hereby
are cured.

Id. at 2-3 (internal italics omitted).

On March 5, 2013, Scott Linde, Robert Hessling, and John Piepoli

(hereinafter, collectively, “the Petitioners”) filed a petition, entitled “Petition

for Review of Contested Corporate Action Pursuant to 15 Pa.C.S.A. § 1793,”

at docket number 109-CV-2013.6 The petition named LEI as the

respondent. The petition requested that the trial court “determine that the

following actions purportedly taken on behalf of [LEI] are legally invalid:”

(a) The December 3, 2012 special shareholders meeting;

(b) The December 3, 2012 Resolution arising from the
December 3, 2012 special shareholders meeting and any
____________________________________________

6
15 Pa.C.S.A. § 1793(a) declares: “[u]pon application of any person
aggrieved by any corporate action, the court may hear and determine the
validity of the corporate action.” 15 Pa.C.S.A. § 1793(a).

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actions directed or authorized thereby (including but not
limited to the removal of Scott F. Linde as a director, officer
and employee of [LEI] . . . and the election of Barbara J.
Linde as President/Secretary of [LEI]);

...

(d) The December 13, 2012 [shareholders’ meeting] and
any actions taken at, or authorized by a vote taken at, said
meeting (including the purported election of a new
director);

(e) The December 13, 2012 board of directors meeting and
any actions taken at, or authorized by a vote taken at, said
meeting (including the election of Barbara J. Linde as
President, Gary Linde as Vice President, and Eric R. Linde as
Secretary/Treasurer of [LEI]);

...

(h) The January 31, 2013 removal of “all currently serving
directors”;

(i) The January 31, 2013 special board of directors meeting
and any actions taken at, or authorized by a vote taken at,
said meeting (including the ratification of actions by Barbara
J. Linde, Eric R. Linde and Gary Linde between December
13, 2012 – January 31, 2013, . . . and the election of
Barbara J. Linde as President, Gary Linde as Vice President,
and Eric R. Linde as Secretary/Treasurer of [LEI]).

Petition for Review of Contested Corporate Action, 3/5/13, at 18-20.

By order entered August 20, 2013, the trial court consolidated the

actions at docket numbers 18-CV-2013 and 109-CV-2013. Trial Court

Order, 8/20/13, at 1-2.

On November 4, 2013, the Defendants filed a joint motion for

summary judgment, wherein they requested that the trial court dismiss all

claims that were contained in Appellants’ complaint and in the Petitioners’

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petition. According to the Defendants, it was uncontradicted that “[a]ll

shareholders, including Scott Linde, were in attendance at the December 13,

2012 [shareholders’] meeting.” The Defendants’ Joint Motion for Summary

Judgment, 11/4/13, at 4. The Defendants also claimed that it was

uncontradicted that, during the December 13, 2012 shareholders’ meeting,

the shareholders passed a motion “affirming/ratifying the resolution adopted

at the [December 3, 2012] shareholders[’] meeting” and a motion “electing

Eric Linde, Barbara Linde and Gary Linde to the Board of Directors.” Id.

The Defendants thus claimed that – even if notice of the December 3, 2012

special shareholders’ meeting were defective – “the actions taken at the

December 3, 2012 meeting were properly ratified/cured at the December 13,

2012 meeting and/or subsequent meetings.” Id. at 6.

Appellants answered the Defendants’ joint motion for summary

judgment and admitted that: Scott Linde attended the December 13, 2012

shareholders’ meeting; the minutes from the December 13, 2012

shareholders’ meeting were true and correct; and, the above-described

motions were “passed” during the December 13, 2012 shareholders’

meeting. Appellants’ Answer to Joint Motion for Summary Judgment,

12/11/13, at 3. However, Appellants denied that the December 13, 2012

resolutions had any legal effect or that the resolutions could have ratified or

cured the illegal actions that were taken at the December 3, 2012 meeting.

Id. at 4-5.

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On November 14, 2013, Appellants filed a cross-motion for partial

summary judgment on the claims contained in the complaint and, on

November 25, 2013, the Petitioners filed a separate cross-motion for partial

summary judgment on the claims contained in the petition. Attached to

these motions for partial summary judgment was deposition testimony from

both Barbara Linde and Eric Linde, wherein they admitted that Scott Linde

was not provided with proper notice of the December 3, 2012 special

shareholders’ meeting. See Appellants’ Motion for Partial Summary

Judgment, 11/14/13, at 4, “Exhibit C,” and “Exhibit D.” Based upon these

admissions, Appellants and the Petitioners claimed that the December 3,

2012 special shareholders’ meeting was illegal, that the resolutions passed

during the December 3, 2012 meeting were “null and void,” and that, since

the resolutions were void, the resolutions could not have been ratified at the

December 13, 2012 shareholders’ meeting. Id. at 6-8. The movants thus

claimed that they were entitled to the relief that they requested in their

complaint and petition.

The trial court heard oral argument on the cross-motions for summary

judgment and, on January 10, 2014, the trial court entered an order

granting the Defendants’ joint motion for summary judgment and denying

the motions for partial summary judgment that were filed on behalf of

Appellants and the Petitioners. The trial court’s order declares:

1. It is the declaration of the court that, although done
without notice to Scott Linde and therefore improper, the
action taken by Barbara Linde and Eric Linde at the

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December 3, 2012 special shareholders meeting in
removing Scott Linde as a director of [LEI] was ratified at
the subsequent annual shareholders meeting on December
13, 2013 and/or at the subsequent January 31, 2013
special shareholders meeting.[fn.1]

[fn.1] “As to special meetings of the board of directors
of a corporation, the general rule in Pennsylvania is that
such a meeting held without notice to some or any of
the directors and in their absence is illegal, and action
taken at such a meeting, although by a majority of the
directors, is invalid absent ratification or estoppel.”
Stone v. Am. Lacquer Solvents Co., [345 A.2d 174
(Pa. 1975)].

2. It is the declaration of the court that Scott Linde was
removed as a director of [LEI] as of December 3, 2012.[fn.2]

[fn.2] “[R]atification of an invalid Board decision has
retroactive effect, making the ratified action valid as of
the original decision date.” Koprowski v. Wistar Inst.
of Anatomy & Biology, 1993 WL 106466 (E.D.Pa.
1993).

3. It is the declaration of the court that John Piepoli was
removed as a director from [LEI] on December 13, 2012.

4. It is the declaration of the court that, at the December 3,
2012 meeting, the action taken by Barbara Linde and Eric
Linde in removing Scott Linde as an officer of [LEI] could
not be ratified at the subsequent December 13, 2012 annual
shareholders meeting because shareholders do not have the
power to remove officers. However, Scott Linde was
properly removed as an officer on December 13, 2012 at
the board of directors meeting.[fn.3]

[fn.3] The January 31, 2013 board of directors meeting
ratified/cured the actions taken at the December 13,
2012 . . . board of directors meeting.

5. It is the declaration of the court that Robert Hessling was
not properly removed as an employee of [LEI] at the
December 3, 2012 special shareholders meeting because

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employees are not subject to removal by shareholders or
the board of directors.

6. Judgment is entered upon the above-stated declarations
of the court.

Trial Court Order, 1/10/14, at 1-2 (some internal capitalization, emphasis,

and footnotes omitted).

Appellants filed a timely notice of appeal and the trial court ordered

Appellants to file a concise statement of errors complained of on appeal,

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).7 Trial Court

Order, 2/7/14, at 1. Appellants complied with the trial court’s order.

However, within Appellants’ Rule 1925(b) statement, Appellants claimed

only that the trial court erred when it determined that the shareholders had

validly removed Scott Linde as a director of LEI and that the trial court

erred when it determined that the removal of Scott Linde as a director was

effective as of December 3, 2012. Appellants’ Rule 1925(b) Statement,

2/27/14, at 1-4. Appellants raised no claim that the trial court erred when it

determined that the shareholders had validly removed John Piepoli as a

____________________________________________

7
We note that the order granting summary judgment was entered under
both consolidated case captions and the notice of appeal was filed at both
consolidated cases. See Pa.R.A.P. 341 cmt. (requiring separate notices of
appeal when appealing final orders that terminate cases at separate
dockets).

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director or that Scott Linde was improperly removed as an officer of LEI.8

See id.

Appellants now raise the following claims to this Court:

1. Whether the trial court’s determination that the actions
taken by Barbara Linde and Eric Linde at their meeting of
December 3, 2012, could be ratified and were therefore
valid constitutes an error of law?

2. Whether the trial court’s determination that Scott Linde
was removed as director of [LEI], as of December 3, 2012
constitutes an error of law because Scott Linde had no role
in the decisions of the December 3, 2012 meeting because
it was conducted without his consent?

3. Whether the trial court erred as a matter of law in
holding that ratification of an illegally conducted meeting
can be accomplished simply by calling a subsequent
meeting with proper notice?

Appellants’ Brief at 6 (some internal capitalization omitted).

As this Court has stated:

Our scope of review of a trial court’s order granting or
denying summary judgment is plenary, and our standard of
review is clear: the trial court’s order will be reversed only
where it is established that the court committed an error of
law or abused its discretion.

Summary judgment is appropriate only when the record
clearly shows that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a
____________________________________________

8
We note that Appellants’ brief also requests that we provide relief for
Robert Hessling. Appellants’ Brief at 25. However, Robert Hessling did not
file a notice of appeal from the underlying trial court order and it appears as
though Robert Hessling was not aggrieved by the trial court’s order.

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matter of law. The reviewing court must view the record in
the light most favorable to the nonmoving party and resolve
all doubts as to the existence of a genuine issue of material
fact against the moving party. Only when the facts are so
clear that reasonable minds could not differ can a trial court
properly enter summary judgment.

Englert v. Fazio Mech. Serv.’s, Inc., 932 A.2d 122, 124 (Pa. Super. 2007)

(internal citations omitted).

At the outset, we conclude that Appellants waived any claim that the

trial court erred in determining that the shareholders had validly removed

John Piepoli as a director of LEI, as the claim was not contained within

Appellants’ court-ordered Rule 1925(b) statement. Pa.R.A.P. 1925(b)(4)(vii)

(“[i]ssues not included in the [Rule 1925(b) s]tatement . . . are waived”);

Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005) (in order to preserve

their claims for appellate review, appellants must comply whenever the trial

court orders them to file a [Rule 1925(b) statement]. Any issues not raised

in a Pa.R.A.P. 1925(b) statement will be deemed waived”) (internal

quotations and citations omitted).

Appellants first claim that, since the December 3, 2012 special

shareholders’ meeting was conducted without notice to Scott Linde, the

meeting was illegal and any resolution passed during the meeting – including

the removal of Scott Linde as a director of LEI – was “null and void.”

Appellants’ Brief at 23-25. Further, Appellants argue that the resolution

passed on December 13, 2012 – to “affirm the resolution for the special

shareholders meeting on December 3, 2012” – had no legal effect, since a

void resolution cannot be ratified. Id.

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Appellants’ claim fails, as the failure to give Scott Linde proper notice

of the December 3, 2012 shareholders’ meeting did not render the actions

taken at the meeting “null and void.” Rather, the failure to provide Scott

Linde with notice of the December 3, 2012 meeting rendered the December

3, 2012 resolutions voidable. However, Appellants offered no evidence,

argument, or claim that, prior to the ratification vote on December 13, 2012,

Scott Linde (or another shareholder) elected to void the actions taken at the

December 3, 2012 meeting. Thus, the December 13, 2012 resolution –

which was validly passed at the properly-noticed December 13, 2012

shareholders’ meeting – ratified the resolutions that were passed at the

improper December 3, 2012 shareholders’ meeting, including the December

3, 2012 resolution removing Scott Linde as a director of LEI. As such, the

shareholders properly removed Scott Linde as a director of LEI. We explain.

As stated above, Defendants admitted that they failed to provide Scott

Linde with proper notice of the December 3, 2012 special shareholders’

meeting and that Scott Linde did not attend the December 3, 2012 meeting.

Moreover, there is no question that the Defendants were required to provide

Scott Linde with notice of the December 3, 2012 special shareholders’

meeting. Indeed, the LEI Bylaws declare that the “[s]tockholders may meet

specially upon being called by ten [days’] notice given by the President or a

majority of the outstanding shares.” LEI Bylaws, dated 2/7/97, at Art. III,

¶ 2. Further, 15 Pa.C.S.A. § 1704 provides in relevant part:

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(b) Notice.-- Notice in record form of every meeting of the
shareholders shall be given by, or at the direction of, the
secretary or other authorized person to each shareholder of
record entitled to vote at the meeting at least:

(1) ten days prior to the day named for a meeting that
will consider a fundamental change . . . ; or

(2) five days prior to the day named for the meeting in
any other case.

(c) Contents.--In the case of a special meeting of
shareholders, the notice shall specify the general nature of
the business to be transacted, and in all cases the notice
shall comply with the express requirements of this subpart.

15 Pa.C.S.A. § 1704 (emphasis added).

Contrariwise, Appellants admitted that Scott Linde was provided with

proper notice of the December 13, 2012 shareholders’ meeting and that

Scott Linde attended the December 13, 2012 shareholders’ meeting.

Appellants’ Answer to Joint Motion for Summary Judgment, 12/11/13, at 3.

Further, Appellants admitted that, during the December 13, 2012

shareholders’ meeting, the shareholders passed a resolution

“affirming/ratifying the resolution adopted at the [December 3, 2012]

shareholders[’] meeting” – and that, amongst other things, the December 3,

2012 resolution declared that Scott Linde was removed as a director of LEI.

Id. Appellants, however, claim that the failure to provide Scott Linde with

notice of the December 3, 2012 special shareholders’ meeting rendered the

December 3, 2012 resolutions “null and void” and, thus, not subject to

ratification. We disagree with Appellants.

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The distinction between a “void” and a “voidable” action is of import to

this case, as a void resolution has no legal effect whatsoever and, thus,

cannot be ratified, whereas a voidable resolution is “valid until annulled.”

BLACK’S LAW DICTIONARY at 1604 (8th ed. 2004); see also Aspinwall-

Delafield Co. v. Borough of Aspinwall, 77 A. 1098 (Pa. 1910) (“a court of

equity cannot interpose to give a void contract, or any part of it, validity”).

Here, while Appellants contend that the failure to provide a shareholder with

notice of a special shareholders’ meeting renders the actions taken at the

meeting void, Appellants provided this Court with no legal precedent to

support their claim. See Appellants’ Brief at 19-31. Further, after

considering the distinction between void and voidable actions, Pennsylvania’s

BCL, and precedent from both this Court and our Supreme Court, we

conclude that the failure to provide Scott Linde with notice of the December

3, 2012 special shareholders’ meeting caused the resolutions passed at that

meeting to be voidable at the election of Scott Linde (or, possibly, another

shareholder) – but not void.

As the Delaware Supreme Court succinctly explained, “[t]he essential

distinction between voidable and void acts is that the former are those which

may be found to have been performed in the interest of the corporation but

beyond the authority of management, as distinguished from acts which are

ultra vires, fraudulent or gifts or waste of corporate assets.” Michelson v.

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Duncan, 407 A.2d 211, 218-219 (Del. 1979);9 see also Bedell v. Oliver

H. Bair Co., 158 A. 651, 653 (Pa. Super. 1932) (“[c]ontracts ultra vires of

the corporation making them are not merely voidable but wholly void and of

no effect”) (internal quotations omitted); Aspinwall-Delafield Co., 77 A. at

1098 (“[a] void contract is one which offends against public law or policy, or

is without the scope of proper authority”); Chambers v. Beaver-Advance

Corp., 140 A.2d 808, 811 (Pa. 1958) (“[t]he general rule is well established

that stockholders can ratify any action of the Board of Directors which they

themselves could have lawfully authorized. The general rule is subject,

however, to the limitation [that] the majority stockholder may not, as

against the corporation and minority stockholder, dissipate or waste its

funds, or fraudulently dispose of them in any way, either by ratifying the

action of the board of directors in voting themselves illegal salaries or by any

other act”) (internal quotations, citations, and corrections omitted).

In the case at bar, Appellants simply argue that the failure to provide

Scott Linde with notice of the December 3, 2012 special shareholders’

meeting (and that failure alone) caused the December 3, 2012 resolution,
____________________________________________

9
At issue in Michelson was whether the acts of the board of directors were
void or voidable; therefore, the above-quoted principle in Michelson
concerned whether the acts were “beyond the authority of management.”
Michelson, 407 A.2d at 218. However, the distinction between void and
voidable acts that was recognized in Michelson is useful to guide our
analysis as to whether the resolutions (or acts) of the shareholders here
were void or voidable.

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removing Scott Linde as a director of LEI, to be void. See Appellants’ Brief

at 19-25. In other words, Appellants provided this Court with no evidence,

argument, or claim that the resolutions passed during the December 3, 2012

special shareholders’ meeting were: beyond the authority of the

stockholders;10 ultra vires; fraudulent; gifts or waste of corporate assets; or,

against public law or policy. Further, Appellants made no claim that the

failure to provide Scott Linde with notice of the December 3, 2012 special

shareholders’ meeting was done with fraudulent intent or was otherwise

intentional. See id. Therefore, the traditional distinction between void and

voidable acts supports our conclusion that the failure to provide Scott Linde

with notice of the December 3, 2012 special shareholders’ meeting rendered

the resolutions voidable, not void.

Section 1705 of the BCL also militates in favor of our conclusion that

the failure to provide a shareholder with notice of a special shareholders’

meeting renders the actions taken at the meeting voidable, but not void.

____________________________________________

10
The shareholders were the proper body to remove Scott Linde as a
director of LEI. See 15 Pa.C.S.A. § 1726 (“[u]nless otherwise provided in a
bylaw adopted by the shareholders, the entire board of directors, or a class
of the board where the board is classified with respect to the power to select
directors, or any individual director of a business corporation may be
removed from office without assigning any cause by the vote of
shareholders, or of the holders of a class or series of shares, entitled to elect
directors, or the class of directors”); see also LEI Bylaws, dated 2/7/97, at
Art. II, ¶¶ 1-4 (no bylaw provides that the board of LEI is classified or that
the directors may only be removed for cause).

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Section 1705 expressly provides that a shareholder is deemed to have

waived defective notice where the shareholder attends a meeting and does

not object to the inadequacy of the notice. 15 Pa.C.S.A. § 1705(b)

(“[a]ttendance of a person at any meeting shall constitute a waiver of notice

of the meeting except where a person attends a meeting for the express

purpose of objecting, at the beginning of the meeting, to the transaction of

any business because the meeting was not lawfully called or convened”).

Therefore, since a shareholder may waive notice by attending a meeting and

not objecting, one cannot say that the failure to provide a shareholder with

notice of a meeting causes the actions taken at the meeting to be void ab

initio.

Third, both this Court and our Supreme Court have consistently held

that the failure to provide a director with the required notice of a special

board meeting renders the actions taken at the meeting voidable – not void

– and thus subject to ratification. See Gordon v. Preston, 1 Watts 385

(Pa. 1833) (holding that a corporation may ratify a mortgage executed by

the directors at a special meeting convened without notice); Moller v.

Keystone Fibre Co., 41 A. 478, 478 (Pa. 1898) (“[t]he learned court below

found as a fact that two of the five directors of the company did not have

timely notice of the meeting at which the assignment was authorized, and

held that on this ground it was voidable; but held also that, as no officer or

stockholder of the company had made any objection to it, their acquiescence

must be accepted as a ratification of it. . . . In this conclusion we concur.”);

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McCay v. Luzerne & Carbon County Motor Transit Co., 189 A. 772, 774

(Pa. Super. 1937) (“it is well established that the proceedings of directors at

an illegal or irregular meeting may be ratified at a subsequent legal meeting,

or by the corporation’s adopting the acts of its representatives”); Stone v.

Am. Lacquer Solvents Co., 345 A.2d 174, 177 (Pa. 1975) (“[a]s to special

meetings of the board of directors of a corporation, the general rule in

Pennsylvania is that such a meeting held without notice to some or any of

the directors and in their absence is illegal, and action taken at such a

meeting, although by a majority of the directors, is invalid absent ratification

or estoppel”).

The BCL phrases the notice requirements similarly for special board

meetings and special shareholders’ meetings. See 15 Pa.C.S.A. § 1703(b)

(“[u]nless otherwise provided in the bylaws, written notice of every special

meeting of the board of directors shall be given to each director at least five

days before the day named for the meeting”) (emphasis added); 15

Pa.C.S.A. § 1704(b) (“Notice in record form of every meeting of the

shareholders shall be given by, or at the direction of, the secretary or other

authorized person to each shareholder of record entitled to vote at the

meeting at least: (1) ten days prior to the day named for a meeting that

will consider a fundamental change . . . ; or (2) five days prior to the day

named for the meeting in any other case”) (emphasis added). Thus, since

the notice statutes are similar with respect to special board meetings and

special shareholders’ meetings, it is apparent that the failure to provide

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proper notice of a special shareholders’ meeting – as with the failure to

provide proper notice of a special board meeting – causes the actions taken

at the meeting to be voidable only.

Finally, in Fishkin v. Hi-Acres, Inc., our Supreme Court interpreted a

notice statute that was similar to the one at bar. There, the Supreme Court

held that the failure to provide a shareholder notice of a meeting – during

which the majority shareholders resolved to sell the corporation’s sole asset

– caused the sale to be voidable, not void ab initio. Fishkin v. Hi-Acres,

Inc., 341 A.2d 95 (Pa. 1975).

In the Fishkin case, the plaintiff was Abraham Fishkin, a minority

shareholder and director of Hi-Acres, Inc. The majority shareholders of Hi-

Acres were R.F. and Louise L. Zahorchak; the Zahorchaks were also

directors of the corporation. Id. at 96. According to Fishkin’s complaint, the

Zahorchaks illegally agreed to alienate the corporation’s sole asset to a third

party, in violation of Section 311(b) of the BCL. At the time, Section 311(b)

of the BCL declared:

A sale, lease, or exchange of all, or substantially all, the
property and assets . . . of a corporation, if made neither
(1) in the usual and regular course of its business . . . may
be made upon such terms and conditions and for such
considerations . . . as may be authorized in the manner
hereinafter provided in this subsection. The board of
directors Shall adopt a resolution recommending such sale,
lease or exchange, and directing the submission thereof, to
a vote of the shareholders entitled to vote in respect thereof
at a meeting which may be either an annual meeting of the
shareholders or a special meeting of the shareholders
entitled to vote . . . written notice stating that the purpose,

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or one of the purposes, of such meeting is to consider the
sale, lease, or exchange of all, or substantially all, the
property and assets of the corporation, Shall be given to
each shareholder of record . . . at least ten days prior to the
date of the meeting, in the manner provided by this act.

Fishkin, 341 A.2d at 97, quoting 15 P.S. § 1311(b) (1975).11

As Fishkin claimed, the Zahorchaks agreed to sell the corporation’s

sole asset to a third party but, in doing so, the Zahorchaks failed to obtain

director approval and, further, failed to provide Fishkin with “notice of the

impending sale as required under [Section] 311.” Fishkin, 341 A.2d at 96-

97 and 96 n.3. Fishkin claimed that, since the legislature utilized the word

“shall” in Section 311(b), “the procedures prescribed by [Section] 311

[subdivision] B [were] mandatory in nature and that, therefore, a transfer

made in violation of the statutory requirements [was] illegal and void ab

initio.” Id. at 97. Our Supreme Court held otherwise.

As the Fishkin Court held, the word “shall” in the above-quoted

statute was directory, but not mandatory;12 therefore, the Supreme Court
____________________________________________

11
The statute governing the voluntary transfer of corporate assets is now
found at 15 Pa.C.S.A. § 1932.
12
In explaining the distinction between directory and mandatory language,
the Fishkin Court declared:

To hold that a statutorily prescribed procedure is directory
does not mean that it is optional; to be adhered to or not at
will. The distinction between a mandatory and a
directory statute lies in the effect of noncompliance
upon the transaction involved – not in the liability of
the person who has violated the statute. Failure to
conform to a mandatory procedure renders the regulated
(Footnote Continued Next Page)

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J-S02028-15

held, transactions accomplished in violation of the required procedure were

voidable, but not void. In arriving at its conclusion, the Fishkin Court

recognized the following principle of law:

Except when relating to the time of doing something,
statutory provisions containing the word “shall” are usually
considered to be mandatory, but it is the intention of the
legislature which governs, and this intent is to be
ascertained from a consideration of the entire act, its
nature, its object and the consequences that would result
from construing it one way or the other.

Id., quoting Francis v. Corleto, 211 A.2d 503, 509 (Pa. 1965) (internal

quotations and some citations omitted).

In ascertaining the legislature’s intent, the Fishkin Court held that the

“object” and purpose of notice provisions such as that found in Section

311(b) “is to insure the freedom of the majority of shareholders to act in

what they consider to be the best interests of the corporation while at the

same time protecting the essential right of the minority stockholders to

express their views and to preserve their rights as dissenters.” Fishkin, 341

A.2d at 98. Given this object – and given that “no public interest of

substance [would be] jeopardized by a transfer not in compliance with the

statute” – our Supreme Court held:
_______________________
(Footnote Continued)

activity a nullity. Strict compliance with a directory
provision, on the other hand, is not essential to the validity
of the transaction or proceeding involved.

Fishkin, 341 A.2d at 98 n.5 (internal citations omitted) (emphasis added).

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J-S02028-15

in enacting [Section] 311, [subdivision] B[,] the legislature
[did not] intend[] that a transfer which is defective solely
because it is violative of the requirements of this provision
would be a nullity and of no effect. Properly construed, the
word “shall” in [Section] 311, [subdivision] B is directory
only, for it is sufficient to protect the rights of minority
shareholders that a non-conforming transfer be deemed
voidable (under proper circumstances) by an aggrieved
stockholder, rather than void ab initio.

Id. (some internal capitalization omitted) (emphasis added).

Fishkin applies with full force to the case at bar. Here, the notice

statute at issue is 15 Pa.C.S.A. § 1704, and, as was true with the statute

interpreted in Fishkin, Section 1704 also utilizes the word “shall” to define

the requirement of notice to the shareholders. 15 Pa.C.S.A. § 1704

(“[n]otice in record form of every meeting of the shareholders shall be

given by, or at the direction of, the secretary or other authorized person to

each shareholder of record entitled to vote at the meeting. . .”). Further,

the notice statute at issue here has the same “object” and purpose as the

statute interpreted in Fishkin: “to insure the freedom of the majority of

shareholders to act in what they consider to be the best interests of the

corporation while at the same time protecting the essential right of the

minority stockholders to express their views and to preserve their rights as

dissenters.” Fishkin, 341 A.2d at 98. Moreover, as in Fishkin, “no public

interest of substance [would be] jeopardized by [resolutions that were] not

[passed] in compliance with” Section 1704. Therefore, consistent with

Fishkin, we conclude that:

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J-S02028-15

in enacting [15 Pa.C.S.A. § 1704] the legislature [did not]
intend[] that a [resolution] which is defective solely because
it is violative of the requirements of this provision would be
a nullity and of no effect. Properly construed, the word
“shall” in [Section 1704] is directory only, for it is sufficient
to protect the rights of minority shareholders that a non-
conforming [resolution] be deemed voidable (under proper
circumstances) by an aggrieved stockholder, rather than
void ab initio.

See Fishkin, 341 A.2d at 98.

We thus conclude that the December 3, 2012 resolution – removing

Scott Linde as a director of LEI – was not void ab initio. Rather, we conclude

that, since the December 3, 2012 special shareholders’ meeting was

conducted without notice to Scott Linde, the subject resolution was voidable

at the election of Scott Linde (or, possibly, another shareholder). 13
____________________________________________

13
In Stone, our Supreme Court explained that:

the rationale [for the BCL’s requirement that all directors
receive notice of a special board meeting] is that each
member of a corporate body has the right of consultation
with the others, and has the right to be heard upon all
questions considered, and it is presumed that if the absent
members had been present they might have dissented, and
their arguments might have convinced the majority of the
unwisdom of their proposed action and thus have produced
a different result.

Stone, 345 A.2d at 178 (internal quotations and citations omitted).

In other words, the BCL’s notice requirements are predicated upon the right
of a director or a shareholder to consider and be heard on all questions
considered, as well as the right of a director or a shareholder to consider
and hear contrary opinions from other directors or shareholders. As such, it
appears as though any individual in the body may elect to void an action
that was taken at a meeting called with insufficient notice. This is because
(Footnote Continued Next Page)

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J-S02028-15

However, Appellants presented no claim or argument that any individual

sought to void the December 3, 2012 resolution prior to the properly-noticed

December 13, 2012 shareholders’ meeting or prior to the December 13,

2012 ratification vote. Therefore, the December 13, 2012 resolution – which

was validly passed at the properly-noticed December 13, 2012 shareholders’

meeting – ratified the resolutions that were passed at the improper

December 3, 2012 shareholders’ meeting, including the December 3, 2012

resolution removing Scott Linde as a director of LEI. In doing so, the

shareholders properly removed Scott Linde as a director of LEI. Appellants’

claim to the contrary thus fails.

Our holding today does not leave shareholders, like Scott Linde,

without recourse when they are given inadequate notice of a shareholders’

meeting. For example, after receiving notice of the December 13, 2012

shareholders’ meeting, Scott Linde could have filed a complaint to enjoin the

December 13, 2012 meeting and to declare that the December 3, 2012

resolutions were void at his election; Scott Linde could have also filed a

declaratory judgment action prior to the December 13, 2012 meeting to void

the December 3, 2012 resolutions. Further, we assume, without deciding,

that Scott Linde could have attended the December 13, 2012 meeting and,

_______________________
(Footnote Continued)

the properly-noticed shareholder or director might be deprived of the views
and arguments of the insufficiently noticed or absent shareholder or director.

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prior to the ratification vote, announced that he was exercising his right to

declare the December 3, 2012 resolutions void, as he did not receive notice

of the December 3, 2012 special shareholders’ meeting. However, Scott

Linde undertook none of the above actions. Rather, he attended the

December 13, 2012 shareholders’ meeting and voted against the merits of

the December 13, 2012 resolution. In doing so, he allowed the shareholders

(as a body) to pass a resolution which “affirm[ed]/ratif[ied] the resolution

adopted at the [December 3, 2012] shareholders[’] meeting” – including the

resolution that removed Scott Linde as a director of LEI. The Defendants’

Joint Motion for Summary Judgment, 11/4/13, at 4; Appellants’ Answer to

Joint Motion for Summary Judgment, 12/11/13, at 3.

For Appellants’ second claim on appeal, Appellants contend that the

December 3, 2012 resolutions were void because “Scott Linde did not

consent to the . . . actions taken at [the December 3, 2012] meeting.”

According to Appellants, since Scott Linde did not consent to the actions

taken at the December 3, 2012 shareholders’ meeting, 15 Pa.C.S.A.

§ 1766(a) renders the December 3, 2012 actions “void ab initio.”

Appellants’ Brief at 25-28. This claim immediately fails, as 15 Pa.C.S.A.

§ 1766 is inapplicable to the case at bar.

15 Pa.C.S.A. § 1766 is entitled “[c]onsent of shareholders in lieu of

meeting.” 15 Pa.C.S.A. § 1766 (emphasis added). Section 1766(a)

provides:

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Unless otherwise restricted in the bylaws, any action
required or permitted to be taken at a meeting of the
shareholders . . . of a business corporation may be taken
without a meeting if a consent or consents to the action in
record form are signed, before, on or after the effective
date of the action by all of the shareholders who would be
entitled to vote at a meeting for such purpose. The consent
or consents must be filed with the minutes of the
proceedings of the shareholders.

15 Pa.C.S.A. § 1766(a).

Section 1766 thus allows the shareholders to act informally, if the

shareholders unanimously consent to the action and comply with the

requisite procedure. However, Section 1766 has no application to the case

at bar, as the shareholders in this case passed a resolution during the

properly-noticed December 13, 2012 shareholders’ meeting. Therefore,

since the shareholders passed the December 13, 2012 resolution formally,

Section 1766 is inapposite and does not support Appellants’ request for

relief.

Finally, Appellants claim that “the trial court erred as a matter of law

in holding that ratification of an illegally conducted meeting can be

accomplished simply by calling a subsequent meeting with proper notice.”

Appellants’ Brief at 28. However, we see no reason why a voidable

shareholders’ resolution may not be ratified at a subsequent, valid

shareholders’ meeting, where the shareholders were fully informed of what

they are asked to ratify and where no action was taken to avoid the earlier

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resolution.14 See also Koprowski v. Wistar Inst. of Anatomy and

Biology, 1993 WL 106466 (E.D.Pa. 1993) (where the board voted to

remove the plaintiff from office, but where the vote was ineffective because

it was not done by “a majority of the whole number of board members as

required by [the institute’s] Second Deed of Trust,” the board properly

convened another meeting and properly voted to “adopt and ratify the

resolutions passed by the [b]oard” at the earlier meeting); Lofland v.

DiSabatino, 1991 WL 138505 (Del. Ch. 1991) (holding that, “although the

notice of the annual shareholders’ meeting was defective, the election [of

the directors at the meeting] was not void but voidable and [] the election

was duly confirmed and ratified at a later meeting after proper notice”).

Further, the only precedent that Appellants cite to support their

argument actually supports the affirmance of the trial court’s order. Indeed,

Appellants argue that our Supreme Court’s opinion in Stone supports their

claim that “ratification of an illegally conducted meeting [cannot] be

accomplished simply by calling a subsequent meeting with proper notice”

because, in Stone, our Supreme Court held:

the rationale [for the BCL’s requirement that all directors
receive notice of a special board meeting] is that each
member of a corporate body has the right of consultation
____________________________________________

14
Appellants have made no claim that, on December 13, 2012, the LEI
shareholders were not fully informed of the resolution they were voting to
ratify.

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J-S02028-15

with the others, and has the right to be heard upon all
questions considered, and it is presumed that if the absent
members had been present they might have dissented, and
their arguments might have convinced the majority of the
unwisdom of their proposed action and thus have produced
a different result.

Stone, 345 A.2d at 178 (internal quotations and citations omitted).

Appellants do not develop their final argument on appeal or explain

how the above quotation supports their claim. However, we again note that

Appellants admit that Scott Linde received proper notice of the December

13, 2012 shareholders’ meeting and that he attended the meeting. As such,

during the December 13, 2012 meeting, Scott Linde had the opportunity to:

consult with the other two shareholders of LEI; “be heard upon all questions

considered;” and, convince the other two shareholders that they should not

vote to ratify the December 3, 2012 resolution removing him as a director of

LEI. See Stone, 345 A.2d at 178. Scott Linde was simply unable to

convince his fellow shareholders of the alleged “unwisdom of their proposed

action.” Id.

The properly-noticed December 13, 2012 shareholders’ meeting thus

upheld and protected the considerations that were spoken of in Stone.

Appellants’ final claim on appeal – that “the trial court erred as a matter of

law in holding that ratification of an illegally conducted meeting can be

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J-S02028-15

accomplished simply by calling a subsequent meeting with proper notice” –

fails.15

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/9/2015

____________________________________________

15
Within Appellants’ Rule 2116 “statement of questions involved,” Appellants
did not raise any claim that the trial court erred when it held that the
December 13, 2012 ratification was retroactively effective, making it so that
Scott Linde’s removal as a director was effective December 3, 2012. As
such, Appellants waived any such claim on appeal. Southcentral
Employment Corp. v. Birmingham Fire Ins. Co., 926 A.2d 977, 983 n.5
(holding that “issue[s] [] not explicitly raised in [the] statement of questions
involved [are] . . . waived”). Moreover, we note that Appellants did not
request monetary relief in their complaint and Appellants did not explain
how they were harmed by the trial court’s conclusion that Scott Linde’s
removal was effective on December 3, 2012. Therefore, even if Appellants
did not waive their claim, Appellants would not be entitled to relief on
appeal. See also 2A FLETCHER CYCLOPEDIA OF THE LAW OF CORPORATIONS § 782
(“[e]xcept as to intervening rights of strangers, ratification by a corporation
of an unauthorized act or contract by its officers or others relates back to the
time of the act or contract ratified, and is equivalent to original authority”).

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