Appeal, No. 380, Oct. T., 1961, from decree fo Court of Common Pleas No. 4 of Philadelphia County, June T., 1957, No. 6819, in equity, in case of The Daniel B. Van Compen Corporation v. Building and Construction Trades Council of Philadelphia et al. Decree reversed.
Frederick C. Fiechter, Jr., for appellant.
Joseph V. Furlong, Jr., Deputy City Solicitor, with him Edward J. Bradley, Deputy City Solicitor, and David Berger, City Solicitor, for City of Philadelphia, appellee.
Before Ervin, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, p.j., and Wright, J., absent).
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OPINION BY MONTGOMERY, J.
This case reaches us with a confused record that indicates a complete disregard for all rules governing the conduct of legal proceeding.
It was started by the filing of a complaint in equity and a motion for a peremptory injunction which was refused. Next, a petition for a temporary injunction was presented and a rule granted thereon. Before the
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return day for the rule preliminary objections to the complaint were filed by two of the defendants, and an answer on the merits filed by one. No one answered the rule for the temporary injunction. Nevertheless, a hearing was held and disposition made thereof. At that time, the preliminary objections to the complaint were orally dismissed although no argument thereon had been heard. Shortly thereafter all proceedings were stayed, and nothing further was done until almost three years had expired, when appellant-plaintiff petitioned for damages against the City of Philadelphia alone, without discontinuing as to the other defendants under Pa. R.C.P. 229(b).
Mr. Furlong, representing the City of Philadelphia, recognized that this procedure was wrong, and at the hearing that followed objected to it -- "... I have never heard of a rule to show cause where there had never been a trial on the merits. I have been prevented somehow or some way from answering the complaint. I did answer the rule to show cause but I probably should not have." (The one answer to the merits of the complaint had been filed by another defendant.)
The court also recognized the procedure to be improper. Its remarks were, "Well, Mr. Fiechter, if you are entitled to anything at all, it should be a hearing on the merits in which all parties are involved."
Nevertheless, at the insistence of Mr. Fiechter (counsel for appellant) and over the continued objection of Mr. Furlong the hearing proceeded, and resulted in a decree nisi for appellant, against the City of Philadelphia, which was rejected by the ...