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JAMES BROTHERS COMPANY ET AL. v. UNION BANKING AND TRUST COMPANY DUBOIS (11/12/68)

decided: November 12, 1968.

JAMES BROTHERS COMPANY ET AL., APPELLANTS,
v.
UNION BANKING AND TRUST COMPANY OF DUBOIS



Appeals from judgment of Court of Common Pleas of McKean County, Dec. T., 1953, No. 1, in case of James Brothers Lumber Company et al. v. The Union Banking and Trust Company of DuBois et al.

COUNSEL

Edward J. Harkins, with him Ralph N. DeCamp, for appellants.

Louis Emanuel, with him Edward V. Cherry, and Gleason, Cherry & Guido, and Buchanan, Ingersoll, Rodewald, Kyle & Buerger, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Musmanno did not participate in the decision of this case.

Author: Bell

[ 432 Pa. Page 130]

This is an appeal by the plaintiffs from a Judgment of non pros. entered in favor of the defendant Union Banking and Trust Company, of DuBois. The question involved is whether the plaintiffs' delay in prosecuting this case was so great, and the resulting harm to the defendants so prejudicial as to warrant the entry of a judgment of non pros.

Crystal Springs Water Company, one of the plaintiffs, was the owner of 1,030 acres of wooded land; the Water Company was indebted to the defendant Union Banking and Trust Company in the amount of $40,000, secured by a mortgage on the land and timber. After the Water Company had defaulted on the debt, the bank, upon a writ of execution, purchased at the resulting sale the cut timber and all the merchantable timber standing on the land. Subsequently the Water Company and the Bank entered into an agreement for the continued cutting of the lumber by the James Brothers Lumber Company, which is an additional plaintiff in this case. Under this agreement, the Lumber Company was to continue cutting and selling the timber under the supervision of an appointee of the bank. This agreement stipulated that the bank did not relinquish its status of a creditor, that the agreement was not supported by consideration, and that its continuance depended upon the bank's continued satisfaction that it was adequately secured, and that the cutting project was being satisfactorily handled. The bank later notified the plaintiffs that it was terminating the agreement because these conditions had not been met. Two months later, on September 3, 1953, the bank sold its interest in the lumber acquired at the sheriff's sale to the additional defendants in this case, who were doing business as the H. S. Nosker Lumber Company.

[ 432 Pa. Page 131]

On October 13, 1953, the plaintiffs Water Company and James Brothers Lumber Company filed a Bill in Equity averring that the bank had wrongfully terminated the agreement, and petitioned for specific performance and an accounting by the bank. On December 7, 1953, defendants filed preliminary objections. From December 7, 1953, until March 11, 1957, when defendants filed their answer to the complaint, it will suffice to say that many legal manoeuvres took place. A preliminary injunction was issued and dissolved, hearings were held, bonds were posted and Court Orders were issued.

From March 11, 1957 until September 26, 1967, more than 10 1/2 years later, the docket reveals no further progress in the matter. Plaintiffs assert that they made some efforts to fix a date for trial, but that these were not recorded on the docket because this was an Equity case, and hearings were not customarily fixed by Rule of Court, but by private consent of the parties. Nevertheless, the last date set for trial was November 17, 1958; trial was not held on that date because it was inconvenient for plaintiffs' counsel.

It is also clear that from March 10, 1959 until June 27, 1963, a period of 4 1/4 years, plaintiffs did nothing to expedite matters other than inquire of their attorneys on the average of twice a year whether any date had been set for hearing or trial. From June 27, 1963 until September 26, 1967, another period of 4 1/4 years, neither plaintiffs nor plaintiffs' counsel did anything to bring the matter to trial. This long period of delay and inactivity was climaxed on September 26, 1967, by the filing by defendants of a petition for a Rule to Show Cause why an Order of non pros. dismissing the action should not be entered.

The Rule was granted, and after submission of briefs and oral argument, the ...


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