Edward C. Rea and 22 Ford Inc., a Corporation v. Ford Motor Company, a Corporation , 497 F.2d 577 ( 1974 )

WEIS, Circuit Judge

(concurring and dissenting):

I concur with the well reasoned opinion of the majority, except with respect to the entry of judgment in favor of the defendant on Count I. I would affirm the judgment in favor of Rea in the amount of $29,683.00.

Count I is a claim for damages resulting from the breach of an oral contract for the sale of realty. This phase of the litigation is based solely on Pennsylvania law and is in the federal courts only by reason of pendant jurisdiction.

Pennsylvania follows the general doctrine that the corporation is an entity separate and distinct from its stockholders. “It is only when justice or public policy demands it and when the rights of innocent parties are not prejudiced thereby nor the theory of corporate entity made useless that the court will disregard the corporate identity.” Fedun v. Mike’s Cafe, Inc., 204 Pa.Super. 356, 362, 363, 204 A.2d 776, 780 (1964), aff’d, 419 Pa. 607, 213 A.2d 638. None of these exceptions is presented here.

The contract was executed by Rea as an individual. It is he who has the cause of action for the breach as the jury found in answering special interrogatories. Although Rea holds a majority of the stock in 22 Ford, Inc., he is not the tenant. It is the corporation which holds the lease from Ford.

The rule for which Naftzinger v. Roth, 93 Pa. 443 (1880), is cited has relevancy only to a person in possession. It can be applied to this case only if the legal distinction between Rea and 22 Ford, Inc. is obliterated.

Ford was well aware that Rea did not intend to have the dealership-tenant be the landowner. The defendant was not misled in any fashion, has not shown any fraud, and is not now entitled to claim that the corporate veil should be pierced.

I find no error in the district court’s disposition of Count I, and would affirm its judgment in favor of the plaintiff.