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MALONEY v. GLOSSER (ET AL. (11/14/67)

decided: November 14, 1967.

MALONEY
v.
GLOSSER (ET AL., APPELLANT)



Appeal from decree of Court of Common Pleas of Cambria County, Dec. T., 1964, No. 2, in case of Thomas D. Maloney, Charles Rollman and Joan Mahan, participants of M. Glosser & Sons, Inc. Profit-Sharing Trust v. Daniel Glosser and Lester D. Edelstein, trustees of M. Glosser & Sons, Inc. Profit-Sharing Trust et al.

COUNSEL

Abraham L. Shapiro, with him Norman C. Henss, S. R. DiFrancesco, Sr., and Cohen, Shapiro, Berger, Polisher and Cohen, and DiFrancesco and DiFrancesco, for appellant.

James Francis O'Malley, with him Yost & O'Malley, for appellees.

Seymour S. Silverstone, for appellees.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Musmanno.

Author: O'brien

[ 427 Pa. Page 549]

This is an action in equity by participants of a profit-sharing trust against Daniel Glosser and Lester D. Edelstein (Trustees), and against William H. Glosser and Samuel H. Cohen, as individuals. An injunction is sought against the trustees, prohibiting them from paying out any funds except on the basis of the schedule felt by plaintiff-appellees to be correct. Furthermore, as incidental to the injunctive relief, an order compelling the repayment by William Glosser, of $39,094.31, paid to him under a different schedule, is sought. The court below, after dismissing, on preliminary

[ 427 Pa. Page 550]

    objection, the suit against Samuel Cohen, filed an adjudication and entered a decree nisi granting the injunction and compelling the repayment of the funds. This appeal followed the dismissal of appellant's exceptions and the entry of the decree nisi as a final decree.

The trustees, although in form a defendant, are neutral in the case, merely asking that the court interpret the trust agreement. William Glosser is the appellant. He contends that the court below erred both in taking jurisdiction of the case and in reaching its decision on the merits.

Appellant claims that equity has no jurisdiction to compel him to repay the funds. We do not agree. The court below based jurisdiction on a number of grounds; one was that Glosser had breached his duties as trustee; another was that the suit was a derivative action, with plaintiffs suing for the trustees. We do not have to consider those grounds, for we find that jurisdiction can be sustained on the basis of incidental relief. Although the claim against William Glosser is one cognizable at law, it is incidental to the injunction against the trustees. The court below was, therefore, correct in retaining jurisdiction, and settling both issues in the same case.

A finding of incidental jurisdiction of the legal issue requires proper equity jurisdiction in the first instance. Cella v. Davidson, 304 Pa. 389, 156 A. 99 (1931). Appellant argues this is lacking here, i.e., that the injunction was improperly granted. It is contended first, that Samuel Cohen and other participants in the trust were indispensable parties; and secondly, that injunctive relief is improper because harmful action is not imminent. Once again, we are compelled to disagree. There has been no failure to join an indispensable party, one whose rights are so connected with the claims of the litigants that no decree can be made between

[ 427 Pa. Page 551]

    them without impairing such rights. As to the other participants in the trust, to whom benefits will inure from a recovery from Glosser, there is no failure to join them, since paragraph 4 of the complaint indicates the action is brought on their behalf. As to Samuel Cohen, a party to an agreement similar to that under which Glosser was paid, this decree does not preclude his seeking relief in another action.

Nor can we accept the argument that injunctive relief was improper because the threatened harm was too remote. Kelly v. Philadelphia, 382 Pa. 459, 115 A.2d 238 (1955). The cases appellant cites are nuisance cases, inapposite here. But in any event, the danger was not remote. Samuel Cohen had an agreement that he was to be paid according to Glosser's interpretation of the trust. Although he had not yet sought payment, it is unreasonable to presume that he would not seek to enforce that agreement, ...


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