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SUPERIOR COURT OF THE STATE OF DELAWARE
RICHARD R. COOCH RESIDENT JUDGE NEW CASTLE COUNTY COURTHOUSE 500 North King Street, Suite 10400 Wilmington, Delaware 19801-3733 (302) 255-0664

David E. Wilks, Esquire Andrea S. Brooks, Esquire Wilks, Lukoff & Bracegirdle, LLC 1300 North Grant Avenue, Suite 100 Wilmington, Delaware 19806 Attorneys for Plaintiff Kurt M. Heyman, Esquire Melissa N. Donimirski, Esquire Proctor Heyman LLP 300 Delaware Avenue, Suite 200 Wilmington, Delaware 19801 Attorneys for Defendants Frederick R. Kessler, Esquire Christopher G. Passavia, Esquire Wollmuth Maher & Deutsch LLP 500 Fifth Avenue, 12th Floor New York, New York 10110 Counsel pro hac vice for Defendants Re: Christopher Good v. Raymond Moyer and Phoenix Payment Systems, Inc. C.A. No. N12C-03-033 RRC Submitted: July 20, 2012 Decided: October 10, 2012 On Defendant Raymond Moyer's Motion to Dismiss.

DENIED.
On Defendant Phoenix Payment Systems, Inc.'s Motion to Dismiss.

GRANTED IN PART AND DENIED IN PART.
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Dear Counsel:

I.

INTRODUCTION

Defendants move to dismiss Plaintiff's complaint for failure to state a cognizable claim. The complaint stems from a stock transfer agreement whereby Plaintiff agreed to sell shares of stock in a corporation where he was formerly employed to that corporation's President. Plaintiff's complaint asserts (1) an express breach of contract claim against both his former employer, a corporation, and the corporation's President and (2) a separate implied contract claim against the corporation only. Plaintiff seeks compensatory and punitive damages. The corporation's president seeks to dismiss the complaint, asserting that his performance is not yet due because a condition precedent remains unfulfilled. Separately, the corporation moves to dismiss, asserting that it did not incur any obligations under the contract and the express contract prohibits the implied contract action. Both parties seek to dismiss Plaintiff's punitive damages claim. The Court finds that Plaintiff's substantive claims are adequately pled except for the express breach of contract claim against the corporation, who retained no express payment obligation. Separately, the Court finds it premature to determine at this juncture whether Plaintiff is potentially able to recover punitive damages; such application must await the development of the entire factual record. Therefore, the president's Motion is DENIED and the corporation's Motion is GRANTED IN PART AND DENIED IN PART.

II.

FACTUAL AND PROCEDURAL HISTORY

The complaint alleges that Plaintiff Christopher Good owned over 200,000 shares of fully vested stock in Defendant Phoenix Payment Systems, Inc. ("EPX"), Plaintiff's former employer, in 2010. Plaintiff is a former EPX Employee. Plaintiff alleges that he never possessed original stock certificates and that the certificates were retained by EPX or, alternatively, that the shares were never certificated. After leaving EPX. EPX's President Raymond Moyer expressed a desire to purchase Plaintiff's shares. The parties reached an agreement and Defendants' attorney prepared a Stock Transfer Agreement. Plaintiff alleges the parties executed that agreement July 2, 2010, along with the associated stock power and assignment appended to the agreement. Stapled to the agreement were two notarized pages

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which provided the date July 2, 2010, but the agreement itself left the date section blank. The agreement was executed by Plaintiff, Moyer, and EPX. The agreement designated Moyer as the stock purchaser and Plaintiff as the seller. The contract provided that "[Moyer] is purchasing the Shares for [Moyer's] own account" 1 and that Moyer had "no present intention of selling or otherwise disposing of all or any portion of the shares." 2 Plaintiff claims that Moyer represented that the purchase price would be paid by EPX, either directly or indirectly, and that Moyer acted as purchaser only as a convenience to EPX. Plaintiff asserts that Defendants have made two payments of $5,000 to Plaintiff so far. The agreement provided no effective date; however, it provided that the closing date would occur no later than thirty days after execution. Plaintiff argues that the purchase price obligation therefore accrued no later than August 1, 2010. The agreement provided that "[o]n the terms and subject to the conditions of the Agreement, [Plaintiff] hereby agrees to sell to [Moyer], and [Moyer] hereby agrees to purchase from [Plaintiff] on the Closing date . . . [the shares] for . . . $250,000." 3 While the agreement provided no closing date, the agreement provided:
[t]he closing of the transactions contemplated by this Agreement shall take place as soon as reasonably practicable following satisfaction or waiver (by the applicable party) of the conditions set forth in Section 2, or at such other time or place as the parties may mutually agree, which date shall in no event be later than thirty (30) days following the Effective Date. 4

The agreement separately included an integration clause and prohibited oral modification or waiver. Section 9.9, the clause prohibiting oral modification and waiver, provided:
Amendment and Waivers. This Agreement may be amended only by a written agreement executed by each of the parties hereto. No amendment of or waiver of, or modification of any obligation under this Agreement will be enforceable unless set forth in a writing signed by the
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Stock Transfer Agreement at

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