J

- A15029

- 23 & J

- A15030

- 23

2023 PA Super 268

IN RE: DRAVO LLC

- DERIVATIVE

CLAIMS AGAINST CARMEUSE LIME,

INC., AND CERTAIN AFFILIATED

ENTITIES

APPEAL OF: ALL PLAINTIFFS

REPRESENTED BY GOLDBERG,

PERSKY & WHITE, P.C. :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1210 WDA 2022

Appeal from the Order Entered October 5, 2022

In the Court of Common Pleas of Allegheny County Civil Division at

No(s): GD 20

- 010198

IN RE: DRAVO LLC

- DERIVATIVE

CLAIMS AGAINST CARMEUSE LIME,

INC., AND CERTAIN AFFILIATED

ENTITIES

APPEAL OF: ALL PLAINTIFFS

REPRESENTED BY SALVINIS, KANE &

GALLUCCI, LLC

Plaintiffs

REPRESENTED BY GOLDBERG,

PERSKY & WHITE, P.C. :

:

:

:

:

:

:

:

:

:

:

:

:

: IN T HE SUPERIOR COURT OF

PENNSYLVANIA

No. 1284 WDA 2022

Appeal from the Order Entered October 5, 2022

In the Court of Common Pleas of Allegheny County Civil Division at

No(s): GD 20

- 010198

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J. *

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

- A15029

- 23 & J

- A15030

- 23

- 2

-

DISSENTING OPINION BY MURRAY, J.: FILED: DECEMBER 19, 2023

T he Majority provides a comprehensive discussion a bout piercing the

corporate veil . However

, I believe the discussion is premature without first

examin ing the timeliness of Appellants’ underlying a ction

. 1 Because I would

conclude that the action does not meet the timeliness requirement of 15

P a.C.S.A. § 1979(a)(2), I respectfully dissent.

Appellants “ are a group of persons suffering from asbestos related

illnesses allegedly caused by ” Dravo Corp. (Dravo). Trial Court Opinion,

1/ 4/23 , at 1. As the Majority states,

[s] ince at least the early 1990s, Dravo has been sued in a number

of lawsuits that sought damages du e to alleged bodily injury

caused by exposure to asbestos, where the exposure typically

occurred during its operations from the 1940s through the 1980 s

.

Majority Opinion at 3 (citations omitted). By the late 1990s, most of Dravo’s

industrial operations had been discontinued. Trial Court Opinion, 1/ 4/23, at

1.

In 1998, in a reverse triangular merger, Dravo became a wholly owned

subsidiary of Carmeuse Lime , Inc. (CLI). 2 Id. at 2. As a result

, CLI acquired

_________________ __________ ______ ____ _______

1 For purposes of this appeal, we refer to Appellants ’ claims as one proceeding.

See Majority Opinion at 11 (“In Septembe r 2020, the trial court severed

[Appellants’] claims from the underl y ing actions and consolidated them into

the instant proceeding.”).

2 For purposes of the merger, CLI formed an acquisition subsidiary, DLCAC.

DLCAC purchased all public shares of Dravo stock, then merged with Dravo.

(Footnote Continued Next Page)J

- A15029

- 23 & J

- A15030

- 23

- 3

-

Dravo ’ s ownership interests , but not its liabilities. Id. at 2. “ After purchase,

Dravo continued to e xist as an independent corporate entity, though still

completely owned by CLI

. ” Id. Although officers or employees of CLI served

as corporate officers of Dravo

, and Dravo maintained separate financial

records and minute books

. Id. In July 2007, CLI purchased all Dravo ’ s stock.

Id. From 2007 through 2018, Dravo manage d its asbestos liabilities through

its primary and excess insurance policies. Id. at 3.

It is important to note that “reverse triangular mergers” are a

recognized method for effecting a leveraged buyout. “ A lthough there are a

host of alternative structures available, the reverse triangular merger has

become the standard approach for [leveraged buyouts] in the United

States.” Edward B. Rock, Adapting to the New Shareholder

- Centric Reality

,

ADAPTING TO THE NEW SHAREHOLDER

- CENTRIC REALITY

, 161 U. Pa

. L. Rev.

1907, 1949 (2013) (emph asis added) ; see also Melvin Aron Eisenberg,

Corporations and Other Business Organizations: Cases and Materials

, 1099

(8th ed. 2000) (explaining how conventional triangular mergers operate). O ur

legislature recognized, “[T]he effect of a forward triangular merger is the same

as that of a reverse triangular merger[.]” 15 Pa.C.S.A. § 336 cmt.

_________________ __________ ______ ____ _______

Trial Court Opinion, 1/4/23, at 2. Thus, Dravo became the surviving entity

, and a wholly

- owned subsidiary of CLI. Id.J

- A15029

- 23 & J

- A15030

- 23

- 4

-

I n 2018, Dravo initia ted corporate dissolution in accordance with

Pennsylvania law. Id. at 4. As Dravo ’ s sole shareholder, CLI formed a

separate subsidiary (Dravo 2018) to effect Dravo’s dissolution. Id. CLI

subsequently transferred all of its Dravo stock to Dravo 2018. Dravo later

converted to a limited liability company (Dravo LLC). Id.

P ertinently

, Dravo filed its certificate of dissolution on July 5, 2018

. Id.

There is no dispute that Appellants filed their asbestos action more than two

years later

.

The timeliness of actions filed against dissolved corporations is dictated

by statute.

“ T he object of all interpretation and construction of statutes is to

ascertain and effectuate the intention of the General

Assembly. Every statute shall be construed, if possible, to give

effect to all its provisions.” [1 Pa.C.S.A.] § 1921(a). “ When the

w ords of a statute are clear and free from all ambiguity, the

letter of it is not to be disregarded under the pretext of

pursuing its spirit. ” Id. § 1921(b).

... [T]he “plain language of

a statute generally provides the best indication of legislative

intent .” Commonwealth v. Rosario

, 294 A.3d 338, 346 (Pa.

2023) (quoting Commonwealth v. Lehman

, ... 243 A.3d 7, 16

(Pa. 2020))

....

Klar v. Dairy Farmers of Am.

, 300 A.3d 361, 372 n.56 (Pa. 2023) (emphasis

added)

.

“ T he Legislature has created a process whereby a dissolved corporation

can bar future claims, thus cutting off the possibility that the corporation's

potential liability could never be completely resolved .” Erdely v. Hinchcliffe

& Keener, Inc.

, 875 A.2d 1078, 1084 (Pa. Super. 2005). S ection 1979 (a) ofJ

- A15029

- 23 & J

- A15030

- 23

- 5

-

Pennsylvania’s Business Corporation Law exp ressly limits the period in which

an action may be brought against dissolved corporation s :

The dissolution of a business corporation

... shall not eliminate nor

impair any remedy available to or against the corporation or its

directors, officers or shareholders for any right or claim existing,

or liability incurred, prior to the dissolution, if an action or

proceeding thereon is brought on behalf of:

....

(2) any other person before or within two years after the

date of the dissolution or within the time otherwise limited

by this subpart or other provision of law, whichever is less.

See sections 1987 (relating to proof of claims), 1993 (relating to

acceptance or rejection of matured claims) and 19 94 (relating to

disposition of unmatured claims).

15 Pa.C.S.A. § 1979(a) (emphasis added)

. Subsection (d) limits the liability

of shareholders of a dissolved corporation:

(d) Limitation of actions. A shareholder of a dissolved

corporation,

... shall not be liable for any claim against the

corporation on which an action is not commenced prior to the

expiration of the period specified in subsection (a)(2).

Id. § 1979(d).

Notably

, Subsection (f) addresses the effect of a late

- filed action against

a dissolved corporation:

Late

- filed action or proceeding. The following apply to an

action or proceeding commenced against a dissolved corporation

after the expiration of the period specified in subsection (a)(2):

(1 ) Any judgment against a dissolved corporation in an

action or proceeding shall be void

.

Id. § 1979(f) (emphasis added)

. T he Legislature further recognized the two

year limitation in the comment to Section 1979:J

- A15029

- 23 & J

- A15030

- 23

- 6

-

[B] etween the date of technical dissolution and the running of the

two

- year statute of limitations on post

- dissolution actions

relating to the dissolved corporation, shareholders of the

corporation have no responsibility for the unpaid liabilities of the

corp oration beyond the amount of net assets distributed to them

in connection with the dissolution and any unpaid subscriptions.

15 Pa.C.S.A. § 1979 cmt. (emphasis added). 3 Thus, the Legislature expressly,

plainly

, and repeatedly set a two

- year limitation for actions brough t against

dissolved corporations. See 1 Pa.C.S.A. § 1921(b).

It is un dispute d that Dravo filed for a certificate of dissolution on July 5,

2018

, and Appellants filed their action after Section 1979 (a)(2) ’s two

- year

limitation period. A pplying the plain language of Section 1979 (a)(2)

,

Appellants’ action is time

- barred. See 15 Pa.C.S.A. § 1979(f) (deeming

judgments re sulting from an untimely action against a dissolved corporation

void ). The Majority’s discussion of “ piercing the corporate veil ” does not

overcome the timeliness issue. O ur Supreme Court explained, “ [p] iercing the

corporate veil is

... a matter of equity, allowing a court to disregard the

corporate form and assess one corporation’s liability against another

. ”

Mortimer v. McCool

, 255 A.3d 261, 268 (Pa. 2021) (citation omitted). T o

assess Dravo’s liability against CLI, we must ascertain whether the underlying

action against Dravo is time

- barred.

_________________ __________ ______ ____ _______

3 In 15 Pa.C .S.A. § 1994

, the Legislature addressed the disposition of

unmatured contractual claims against a dissolved corporation. T he L egislature

reiterated

, “ the holder of any other claim may bring an action against the

dissolved corporation or its directors, officers or shareholders within the time

limited by section 1979(a) .” 15 Pa.C.S.A. § 1994(b) (emphasis added).J

- A15029

- 23 & J

- A15030

- 23

- 7

-

Caselaw regarding “p iercing the corporate veil” indicates that the

underlying action controls the applicable statute of limitations. See, e.g., S.T.

Hudson Engineers, Inc. v. Camden Hotel Dev. Associates

, 747 A.2d 931,

934

- 35 (Pa. Super. 2000) (applying a six

- year limitation period for a claim to

pierce the corporate veil, after determining it wa s the appropriate limitation s

period for the underlying breach of contract action); Krause v. Gr eat Lakes

Holdings, Inc.

, 563 A.2d 1182, 1190

- 92 (Pa. Super. 1989) (applying a two

year statute of limitation s for a claim to pierce the corporate veil w here the

underlying action was based on fraud).

Here, the Legislature mandated a two

- year limitation period for actions

against dissolved corporations. See 15 Pa.C.S.A. § 1979(a)(2). It is

undisputed that Appellants failed to file their action within the two

- year period

.

Because their action is statutorily time

- barred, I would affirm the trial court’s

order entering summary judgment against Appellants.