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FOSTER GRADING COMPANY v. INTERNATIONAL UNION OPERATING ENGINEERS (11/12/63)

November 12, 1963

FOSTER GRADING COMPANY, APPELLANT,
v.
INTERNATIONAL UNION OF OPERATING ENGINEERS, A.F.L. LOCAL 66.



Appeal, No. 192, March T., 1963, from decree of Court of Common Pleas of Butler County, Sept. T., 1955, No. 3, in case of Foster Grading Company v. International Union of Operating Engineers, A.F.L. Local 66, Laborers District Council of Western Pennsylvania, General Laborers Union Local 1058, Mike Drobezko et al. Decree reversed.

COUNSEL

Richard R. Lefever, with him Samuel A. Schreckengaust, Jr., John P. MacFarlane, and McNees, Wallace & Nurick, for appellant.

J. Mark Maurizi, with him Saul J. Bernstein, Leo M. Stepanian, and Gatz, Cohen, O'Brien & Maurizi, and Bernstein & Campbell, for appellees.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Roberts

[ 412 Pa. Page 522]

OPINION BY MR. JUSTICE ROBERTS

This equity action was commenced by appellant on July 28, 1955, in the Court of Common Pleas of Butler County. The complaint sought a preliminary injunction to restrain picketing of a road building project by defendant-appellees, together with such additional relief as the court deemed proper. The court below issued a rule to show cause why the relief prayed for should not be granted, returnable August 2, 1955. A decree awarding the preliminary injunction was granted August 6, 1955, and appellees were accorded twenty days within which to answer the complaint. A written opinion supporting the decree of August 6 was filed August 10. The opinion indicates that appellees offered no testimony and challenged the sufficiency of appellant's evidence. The court below concluded that no "labor dispute" existed between the parties under applicable Pennsylvania law, that the Pennsylvania Anti-Injunction Act and the federal prohibition against injunctions in labor cases did not apply, and that the court had jurisdiction over the parties and subject matter of the dispute. The notes of testimony were never transcribed and are not now available for transcription.

[ 412 Pa. Page 523]

The difficulties in this case arise primarily because the decree granting the preliminary injunction did not require a bond, as mandated by Pa. R.C.P. 1531(b), and none was ever filed.

On August 26, 1955, appellees' answer to the initial complaint was filed. By way of this answer, rather than by preliminary objections, appellees challenged the jurisdiction of the court below, urging that a "labor dispute exists between the defendants and the plaintiff."

On March 16, 1956, appellant filed a petition to amend its general claim for damages in its complaint to claim specific monetary damages of $40,745.67, as a consequence of the alleged unlawful picketing for which the injunction was initially sought. On the same day, a rule was entered upon appellees to show cause why appellant should not be granted leave to amend, and, on June 8, 1956, after hearing in open court, an order was entered granting the petition.*fn1

On January 22, 1960, pursuant to Pa. R.C.P. 1513, appellant petitioned for the submission to a jury of the factual issues raised by the amended complaint, and an order for jury trial was entered accordingly. Appellees petitioned the court on March 8, 1961, to have the entire matter reopened and considered de novo because the testimony taken at the hearing for preliminary injunction was not transcribed and not available, and, therefore, there was not a ...


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