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GROSSO v. ENGLERT (04/18/55)

April 18, 1955

GROSSO
v.
ENGLERT, APPELLANT.



Appeal, No. 44, March T., 1955, from decree of Court of Common Pleas of Allegheny County, April T., 1954, No. 2967, in case of Angela Grosso v. Robert Englert et ux. and Peoples First National Bank & Trust Co. and First National Bank. Decree affirmed.

COUNSEL

Leonard A. Mazer, for appellants.

Solis Horwitz, with him Sidney Baker, Daniel Krause, and Boreman, Parker, Krause & Horwitz, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Chidsey

[ 381 Pa. Page 352]

OPINION BY MR. JUSTICE CHIDSEY

On February 24, 1954, upon the petition of Angela Grosso, the Court of Common Pleas of Allegheny County issued an order at No. 1969 April Term, 1954 restraining Robert Englert and Irene Englert, his wife, from withdrawing funds from two banks. Later, on the same day, plaintiff posted an injunction bond in the sum of $2,500. On March 17, 1954 a hearing was held on whether the temporary injunction should be continued. At the hearing counsel for defendants

[ 381 Pa. Page 353]

    moved to dissolve the restraining order on the ground that no injunction bond had been filed until several hours after the injunction was granted. The court reserved decision and took testimony. Counsel for the defendants fully participated in this hearing, cross-examining plaintiff and her witnesses. On March 22, 1954 the court granted the defendants' motion and the temporary injunction was dissolved for the sole reason that the plaintiff had failed to file an injunction bond simultaneously with the issuing of the injunction. On the same day plaintiff filed an identical petition for a restraining order at No. 2967 April Term, 1954, based upon the same facts. An injunction bond of $6,000 was posted and a temporary injunction similarly restraining the defendants from the withdrawal of funds deposited in the two banks. At a hearing on March 30, 1954 counsel for plaintiff orally moved to discontinue his earlier action at No. 1969. Counsel for defendants orally moved to dismiss the instant proceeding at No. 2967, claiming it was barred by the action at No. 1969. The chancellor reserved decision on the motions and proceeded with the hearing. The testimony previously taken at No. 1969 before the same judge was admitted into evidence. On April 28, 1954 the chancellor made an order continuing the injunction issued on March 22nd, consolidating the proceeding at No. 1969 with the instant case at No. 2967, directing the bond entered in the earlier case to remain as security for costs in that proceeding and ordered the plaintiff to file a complaint within 20 days. Plaintiff filed her complaint and defendants filed preliminary objections incorporating their objections raised at the hearing of March 30th and also filed exceptions to the order of court of April 28th. On May 20, 1954 the court entered an order staying all proceedings until a final determination of defendants' exceptions. Argument on the latter

[ 381 Pa. Page 354]

    was heard before the court en banc which filed an opinion and order dated October 25, 1954 dismissing defendants' exceptions and preliminary objections, thereby in effect continuing the preliminary injunction, and ordering the defendants to file an answer to plaintiff's complaint within 20 days. Defendants took this appeal.

Appellee filed in this court a motion to quash on the ground that the order of October 25, 1954 is not an appealable one. So much of the order of October 25th as overruled defendants' preliminary objections is interlocutory and not appealable. However, appellants contend that their appeal is to be considered as taken from the order granting the preliminary injunction on March 22, 1954. Appellee argues that even assuming that the appeal may be construed as an appeal from the order of March 22nd granting the injunction, it must be quashed because not timely taken. In Roth v. Columbia Distributing Company of Allentown, 371 Pa. 297, 89 A.2d 825, we held that the right to appeal from the grant of a preliminary injunction endures for the period of time allowed by law for an appeal in an equity proceeding, namely, three calendar months from the entry of the order, judgment or decree appealed from: Act of April 21, 1846, P.L. 432, Sec. 3, 12 PS § 1092; Act of May 19, 1897, P.L. 67, Sec. 4 as amended, 12 PS § 1136. As above appears, the court below in its order of May 20, 1954 stayed all proceedings. This stay tolled the running of time for appeal from the grant of the preliminary injunction of March 22nd. ...


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