The de facto merger doctrine appears to have had its origins in cases relating to corporate taxation and minority shareholder rights. See Helvering v. Metropolitan Edison Co., 306 U.S. 522, 529, 59 S.Ct. 634, 638, 83 L.Ed. 957 (1939) (where sale of assets was a de facto merger, successor corporation could deduct expenses of predecessor); San Joaquin Ginning Co. v. McColgan, 20 Cal.2d 254, 125 P.2d 36, 39-41 (1942) (corporation was not entitled to a refund of franchise tax where the sale of its assets resulted in a de facto merger with its successor); Marks v. Autocar Co., 153 F. Supp. 768 (E.D.Pa. 1954) (minority shareholder entitled to an appraisal under corporate merger statute where corporation's sale of assets for stock was a de facto merger). See also Cyr v. B. Offen Co., Inc., 501 F.2d 1145, 1152 (1st Cir. 1974) ("these exceptions were developed in the context of tax assessment").

In view of the fact that Disston has agreed to dissolve and will cease to exist as a corporate entity, abandoning its name and legal identity, becoming a division of Porter, with all of its stockholders becoming stockholders of Porter, and Pittsburgh assuming the liabilities of Disston, this transaction was in effect a de facto merger. See the unreported opinions dated 9/4/54 and 2/17/55 of Chief Judge Kirkpatrick in Marks v. Autocar Co., and White Motor Co., D.C., 153 F. Supp. 768; 152 F. Supp. 408; cf. Bloch v. Baldwin Locomotive Works, C.P.Del.Co., 1950, 75 Pa.Dist. Co.R. 24, 1950. Under the Marks case, supra, whether Disston's transfer of its assets to Pittsburgh be labelled by Disston and Porter as a merger or a sale, the "exclusive" remedy of Section 908, subd. C does not preclude this action or the jurisdiction of this court.

The legislature enacted a law, modifying inter alia Sections 311 and 908, entitled in part: An Act . . . changing the law as to . . . the acquisition or transfer of corporate assets, the rights of dissenting shareholders, . . . abolishing the doctrine of de facto mergers or consolidation and reversing the rules laid down in Bloch v. Baldwin Locomotive Works, 75 Pa. D. C. 24, and Marks v. The Autocar Co., 153 F. Supp. 768, . . . . Act of November 10, 1959 (P.L. 1406, No. 502)

The List-Glen Alden agreement, the Court held, fundamentally altered the relationship between Glen Alden and its shareholders, and therefore the provisions relating to dissenting shareholders' rights should apply.See also, Troupiansky v. Henry Disston Sons, 151 F. Supp. 609 (E.D.Pa. 1957); Marks v. Autocar Co., 153 F. Supp. 768 (E.D.Pa. 1954); Bloch v. Baldwin Locomotive Works, 75 Pa. D. C. 24 (C.P.Del.Co. 1950). In Glen Alden, the Court stated in dictum that even if the exchange were a sale, another statutory provision would give dissenting shareholders valuation rights.

Gateway points to 15 Pa. Cons. Stat. Ann. § 1904 (1989), which states: The doctrine of de facto mergers, consolidations and other fundamental transactions is abolished and the rules laid down by Bloch v. Baldwin Locomotive Works, 75 Pa. D. & C. 24 (C.P.Del.Cty.1950), and Marks v. The Autocar Co., 153 F.Supp. 768 (E.D.Pa.1954), and similar cases are overruled.” Gateway concedes that there is no relevant state case statute applying the law to the context before me. Gateway Motion at 16.

There is one further consideration. I think, and I have in effect said in the opinion of September 4, 1954, 153 F. Supp. 768, that the defendants by deliberately avoiding the final step necessary to comply with the statute and by disavowing throughout that it was a merger, have deprived themselves of the purely statutory restrictions and limitations upon the plaintiff's rights including the requirements of notice and application to the Common Pleas Court for appointment of appraisers, etc. In other words, this is a common law merger not governed by the provisions of the statute.

        KIRKPATRICK, Chief Judge.         The cause of action asserted by this plaintiff is grounded upon the same transaction which formed the basis of the plaintiff's case in Marks v. Autocar Company, D.C., 153 F.Supp. 768. In an opinion in the latter case, filed herewith, I held that the plaintiff could not, over her dissent, have her stock in Autocar taken away from her and the stock of White imposed upon her by way of compensation and that she had a right to claim and receive the value of her stock in money.

Farris, supra, at 433. See Troupiansky v Henry Disston Sons, Inc, 151 F. Supp. 609 (ED Pa, 1957), Marks v Autocar Co, 153 F. Supp. 768 (ED Pa, 1954), Rath v Rath Packing Co, 257 Iowa 1277; 136 N.W.2d 410 (1965). But see Pomierski v W R Grace Co, 282 F. Supp. 385 (ND Ill, 1967), Cummings v United Artists Theatre Circuit, Inc, 237 Md. 1; 204 A.2d 795 (1964).

No opinion was expressed as to whether shareholders of the selling corporation could obtain equitable relief. The Delaware court first decided that question in Hariton v. Arco Electronics, Inc., supra, Del. Ch., 188 A.2d 123. We think the precedents which support the statement quoted from Fletcher are sound. Aside from Applestein v. United Board Carton Corp., supra, 60 N.J. Super. 333, 159 A.2d 146, affirmed 33 N.J. 72, 161 A.2d 474, the case most frequently cited in support of such view is Farris v. Glen Alden Corp., 393 Pa. 427, 143 A.2d 25, 28. Other precedents which lend support include Gilbert v. Burnside, 197 N.Y.S.2d 623, 632 (involving the same transaction considered in Farris); American Hospital and Life Ins. Co. v. Kunkel, 71 N.M. 164, 376 P.2d 956, 962, 963; Marks v. The Autocar Co., D.C. Pa., 153 F. Supp. 768; Troupiansky v. Henry Disston Sons, D.C. Pa., 151 F. Supp. 609. See also Metropolitan Edison Co. v. Commissioner of Internal Revenue, supra, 3 Cir., Pa., 98 F.2d 807, 809, affirmed 306 U.S. 522, 529, 59 S. Ct. 634, 83 L. Ed. 957, 964.

We should like to mention only two more decisions: In Marks v. The Autocar Company, 153 F. Supp. 768, (E.D.Pa. 1954), the court said: "* * * However, I have no doubt that it is, in substance and in effect, a de facto merger, though not consummated in accordance with the procedure set up by the statute.