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GOOD v. SWOROB (03/22/66)

decided: March 22, 1966.

GOOD, APPELLANT,
v.
SWOROB



Appeal from decree of Court of Common Pleas No. 8 of Philadelphia County, June T., 1964, No. 3375, in case of William F. Good v. Joseph P. Sworob.

COUNSEL

William T. Steerman, with him Herman Steerman, and Zarwin, Prince, Baum, and Steerman, for appellant.

Michael C. Rainone, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno.

Author: Musmanno

[ 420 Pa. Page 436]

A legal controversy is a battle. It may not be bloody, no bodies are carried off the field of action, but in all essentials it is a determined conflict in which each side seeks to gain victory over the other. However, as in warfare, the contending parties in a law battle often seek to resolve their differences without going into the final hand-to-hand encounter when there may not be left enough for either side to claim victory or glory. During these armistices in war or in law, neither side is to fire a hostile shot or clandestinely move troops.

The parties in this litigation agreed to an armistice. Under a flag of truce they met, talked, conferred, negotiated, and tacitly agreed to meet again. Then one side, without notifying the other of its intention to resume hostilities, rushed into the controverted terrain and grabbed what was in dispute. We are called upon to determine whether this was legal.

Specifically and objectively, Wm. F. Good, on July 20, 1964, instituted an action in equity against Joseph

[ 420 Pa. Page 437]

P. Sworob to enforce an alleged partnership agreement. On July 24th a preliminary injunction issued to hold matters in status quo. On August 11th, the attorney for the defendant met with the attorney for the plaintiff and they discussed the desirability of settlement, both sides agreeing that this was possible and probable. They definitively agreed to postpone a hearing on the injunction proceedings for 30 days, that is, until September 12th, pending a hoped-for final settlement.

On September 9th, three days before the expiration of that waiting period, the contending counsel met again. Once more they explored the various avenues for an amicable meeting of the minds on the disputed issues. Offers and counteroffers were submitted by both sides, but no definitive conclusion was reached. However, both sides agreed that the case would not be listed for disposition in court automatically, but would be ordered down by praecipe, and that, when that was to take place, the attorney for the plaintiff would inform the attorney for the defendant to that effect. They separated with the flag of truce still flying.

According to the original agreement, the 30-day delay in the hearing on the injunction would hold up proceedings until September 12th, which date fell on a Saturday. On September 15th, at 9:29 a.m., a minute before the prothonotary opened his office for business, the plaintiff entered judgment against the defendant for failure to file an answer. Technically he was authorized to do this, but under the rules of fairness which attorneys respect in situations of this kind, the defendant was entitled to notice of the plaintiff's intentions so that he would have an opportunity to file his answer. At the conference on September 12th, there were ...


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