Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1969, No. 1698, in case of Mt. Savage Refractories Company v. D. H. Overmyer Co., Inc.
Charles Covert Arensberg, with him James M. Ferguson, III, and Tucker, Burke, Campbell & Arensberg, for appellant.
James L. Weisman, with him Avins and Weisman, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Montgomery, J. Hoffman and Spaulding, JJ., join in this dissenting opinion.
[ 218 Pa. Super. Page 152]
Dissenting Opinion by Montgomery, J.:
The lower court in this case refused the petition of the appellant, Lawrence Warehouse Company (Lawrence), to strike off discontinuance and for leave to intervene mainly for the reason that in its opinion Lawrence would not be unduly prejudiced thereby. Since I think that Lawrence has been so prejudiced, I am constrained to express this dissent from the affirmance of the lower court's order.
Although there was a dispute between the parties to this appeal on some of the facts, the facts necessary for a decision on this controversy are as follows: The appellee, Mt. Savage Refractories Company (Mt. Savage),
[ 218 Pa. Super. Page 153]
on August 28, 1969, commenced a suit in replevin against D. H. Overmyer Co., Inc. (Overmyer), to recover possession of certain automotive and truck parts situated in Warehouse A and B at 2150 Roswell Drive, Pittsburgh, Pennsylvania, and posted a $90,000 bond of The Travelers Indemnity Company. The condition of the bond was, "That if the above named plaintiff fails to maintain its title to such goods or chattel it shall pay to the party thereunto entitled the value of said goods and chattels, and all legal costs, fees and damages which the defendant or other persons, to whom such goods or chattels so detained belong may sustain by reason of the issuance of such Writ of Replevin . ...