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COMMONWEALTH v. SCHALL (11/30/72)

decided: November 30, 1972.

COMMONWEALTH
v.
SCHALL, ET AL.



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Gerald Schall, t/d/b/a Peoples Service Gas Heating Co., and Joseph Nemetz and Rudolph Suto, individually and as officers and agents of Peoples Service Gas Heating Company, No. 1330 April Term, 1972.

COUNSEL

Robert S. Adler, Special Assistant Attorney General, with him Joel Weisberg, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellant.

Allen N. Brunwasser, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 6 Pa. Commw. Page 579]

The narrow and novel issue raised in this appeal is whether the lower court erred in refusing to grant the Commonwealth an evidentiary hearing on its motion for preliminary injunction filed incident to its commencement of litigation by a complaint in equity.

The order appealed from is one which passes upon preliminary objections filed by defendants and which directs the case to be assigned for hearing on the merits after the pleadings have been closed. The refusal to conduct a hearing on plaintiff's motion for a preliminary injunction is found in the opinion supporting the order appealed from, in which the court states: "With

[ 6 Pa. Commw. Page 580]

    respect to whether a preliminary injunction should be granted, the statute authorizes the grant of 'temporary or permanent injunction.' The statute is silent on the question whether there is to be in every case an opportunity for the plaintiff to proceed by way of a request for preliminary injunction. Preliminary injunctions are properly regarded by the law as potent weapons, to be reserved for only those cases where there is present a risk of immediate and irreparable injury. R.C.P. 1531. We do not believe that the allegations of the complaint in this case would justify a preliminary injunction, and so we will not have a hearing on that issue."

On February 7, 1972, the Commonwealth filed its complaint in equity in the Court of Common Pleas of Allegheny County alleging the defendants, in operating a business as Peoples Service Gas Heating Company, to be in violation of the Unfair Trade Practices and Consumer Protection Law and the Home Improvement Finance Act.*fn1 Numerous specific and detailed violations are charged. Hearing on the Commonwealth's motion for preliminary injunction was originally set for February 17, 1972, but after defendants filed multiple preliminary objections the hearing was continued to March 13, 1972. On this later date, the motion judge of the month, notwithstanding that plaintiff was ready to proceed to hearing with a number of witnesses present, conducted a conference in chambers including informal argument on the preliminary objections. As a result of that conference, we learn from the court opinion subsequently filed that as a "matter of orderly procedure the court ought first to give consideration to the numerous preliminary objections . . . and that if

[ 6 Pa. Commw. Page 581]

    there were to be a hearing, it should he held under such circumstances that it could proceed without the constant interruption that is inflicted upon all but the shortest hearings that are conducted by the motions judge." However, as we also learn from that opinion, the court refused to afford the Commonwealth any hearing on its motion for preliminary injunction.

While disappointed that an evidentiary hearing did not take place on the second date for which it was scheduled, the Commonwealth, in recognition of the myriad responsibilities of the motion judge, does not take exception to the fact that it was not heard as scheduled. It does, however, insist that it has a right to such a hearing where, as here, the ...


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