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MELVILLE v. WANTSCHEK

October 31, 1975

ROBERT L. MELVILLE, Individually and Derivatively in the Right and for the Benefit of THEIL, INC., Plaintiff,
v.
WALTER C. WANTSCHEK, JOSEPH G. SICINSKI, REYNOLD P. ROSSI, WILLIAM GUTTENBERG, JOHN T. WALSH, FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver, THEIL, INC., EUROPEAN-AMERICAN BANK & TRUST COMPANY, BRADFORD TRUST COMPANY, STANLEY GOTTSCHALK, THOMAS L. DRISCOLL, HENRY A. SHAPIRO, and SHAPIRO, DRISCOLL & GOTTSCHALK, a partnership, Defendants. FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver, Third-party Plaintiff, v. HENRY A. SHAPIRO, ESQ., THOMAS L. DRISCOLL, JR., ESQ., and STANLEY GOTTSCHALK, ESQ., individually and as co-partners doing business under the firm name of SHAPIRO, DRISCOLL and GOTTSCHALK, Third-party Defendants



The opinion of the court was delivered by: PLATT

PLATT, D.J.

 After six years of pre-trial maneuvering and the fairly recent filing by the plaintiff of an amended complaint and an amended pre-trial order, defendant Franklin National Bank (Federal Deposit Insurance Corporation, as Receiver -- hereinafter "Franklin") has moved pursuant to FRCP 56 for summary judgment with respect to the first and second claims against it (the third through sixth claims are not made against said defendant) in plaintiff's amended complaint.

 Plaintiff in his first claim against Franklin alleges that Franklin, as transfer agent of Theil, Inc., willfully, wrongfully, negligently and recklessly has since July 2, 1968 refused to permit plaintiff to sell some 9,888 shares of unregistered Theil stock and that as a result thereof plaintiff has been damaged in the sum of at least $165,000.

 In his second claim, plaintiff realleges his first claim and asserts that Franklin wrongfully and fraudulently exercised dominion over and converted to its own use and benefit said 9,888 shares of Theil stock and seeks damages in the sum of $183,000 plus punitive damages in the sum of $500,000.

 The following are facts which were stipulated by the parties or as to which there appears to be no dispute:

 Plaintiff was and is a citizen of the State of Pennsylvania.

 Defendant Theil, Inc. (formerly Theil Publications, Inc.; herein "Theil") was and is a New York corporation with its principal place of business in this State.

 On September 23, 1971 Theil filed an assignment for the benefit of creditors in Nassau County, New York.

 Franklin was a national banking association organized and existing under the laws of the United States.

 On October 8, 1974 the Comptroller of the Currency declared Franklin to be insolvent and designated Federal Deposit Insurance Corporation as Receiver for said bank.

 At all relevant times Franklin acted as transfer agent for the shares of stock of Theil pursuant to an appointment dated June 10, 1961.

 At all relevant times defendants Henry A. Shapiro, Thomas L. Driscoll, Jr. and Stanley Gottschalk ("Gottschalk") comprised a law partnership doing business as Shapiro, Driscoll & Gottschalk and prior to November 1970 they were and acted as counsel for Theil.

 In or about April 1963 plaintiff became employed by Ewing Technical Design, Inc. ("Ewing").

 From 1965 through 1967 Ewing was a subsidiary of Theil. Plaintiff issued the following checks to the following persons in payment for Theil's stock: Seller Date Amount of Check Nathan Abramowitz June 29, 1965 $ 2,625.00 Louis Sepe June 29, 1965 2,400.00 Louis Sepe Feb. 6, 1966 403.00 Louis Sepe Feb. 6, 1966 40.00 Louis Sepe July 26, 1966 2,000.00 Walter Wantschek May 29, 1967 2,100.00

 Plaintiff wrote the following investment letters pertaining to his purchases of Theil stock:

 
1. June 29, 1965 to Nathan Abramowitz for 3500 shares.
 
2. June 29, 1965 to Louis Sepe for 3200 shares.
 
3. June 16, 1966 to Messrs. Shapiro, Driscoll & Gottschalk for 9,888 shares.
 
4. May 29, 1967 to Messrs. Shapiro, Driscoll & Gottschalk for 2,000 shares.

 Theil common stock was issued in plaintiff's name as follows:

 
1. Certificate CU 603 -- 9,888 shares issued July 1, 1966
 
2. Certificate CU 657-2,000 shares issued July 21, 1967

 Investment stops were placed on records of Franklin for plaintiff's shares as follows:

 
1. July 5, 1966 with respect to CU 603-9,888 shares
 
2. July 24, 1967 with respect to CU ...

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