This section contains the nature of the case and procedural background.

P and D entered into a Sales agreement whereby D was to pay P a commission for sales from Lederle Laboratories, Inc. The Agreement was executed on July 1, 1992. P alleges that D failed to pay commissions. P sued D. During discovery D contacted the New Jersey Department of Treasury to determine whether P remained a corporation in good standing with the state of New Jersey. D was informed that P was not a New Jersey corporation, nor had it ever been registered as a New Jersey corporation. The Court raised the issue of whether P had legal capacity to sue under the Agreement. D argues that P lacks capacity to sue D and that P should not be considered a de facto corporation. D also contends that P's lack of corporate status as of the date of the parties' contract renders the Agreement invalid and unenforceable. P has presented evidence of its handwritten certificate of incorporation which bears the notation 'mailed 8-14-92.' P also presented its federal and state tax returns for the years 1993 through 1997 and the canceled checks for payment of those taxes. P also presented correspondence with the Internal Revenue Service (advising of change of corporation's address). P argues in the alternative that even if a de facto corporation is not established, D should be estopped from relying upon P's failure to effectuate incorporation prior to the effective date of the parties' contract based upon the doctrine of corporation by estoppel.

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