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SPRYS v. HACKETT (05/21/51)

THE SUPREME COURT OF PENNSYLVANIA


May 21, 1951

SPRYS, APPELLANT,
v.
HACKETT

Appeal, No. 85, March T., 1951, from order of Court of Common Pleas of Allegheny County, Oct. T., 1950, in Equity, No. 1296, in case of Victor M. Sprys v. Patrick F. Hackett, individually and as Trustee and Officer of Local No. 5, American Federation of Labor, etc. Order reversed.

COUNSEL

Loyal H. Gregg, with him Mahlon E. Lewis, and Gwilym A. Price, Jr., for appellant.

Bernard Kaplan, for appellees.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Ladner and Chidsey, JJ.

[ 367 Pa. Page 313]

OPINION PER CURIAM

Plaintiff filed a bill in equity to restrain alleged unlawful picketing by defendants who thereupon entered a general appearance. A hearing was had and a preliminary injunction issued.

One week later, on August 15, 1950, defendants filed a motion to dismiss the bill on the ground that the bill did not have endorsed thereon any notice to defendants to file an answer. This motion was denied.

On September 6, 1950, defendants filed preliminary objections to the bill on the ground that the bill failed to notify defendants to file an answer. The court below sustained the preliminary objections and dismissed the bill. This appeal followed.

Plaintiff neglected to ask the court below for leave to amend, which he should have done. He now asks leave to do so. The court below could have granted leave to amend without plaintiff's request. Defendants suffered no harm from the failure of plaintiff to notify them to plead.

[ 367 Pa. Page 314]

In the interest of justice plaintiff should be permitted to amend his complaint by filing a notice to plead thereon.

Order reversed with directions to the court below to permit plaintiff to amend his complaint by filing a notice to plead thereon and with a procedendo. Costs to abide the event.

Disposition

Order reversed with directions to the court below to permit plaintiff to amend his complaint by filing a notice to plead thereon and with a procedendo. Costs to abide the event.

19510521

© 1998 VersusLaw Inc.



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