Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1973, No. 1274, in case of Irwin N. Rosenzweig v. Marvin W. Factor, individually and Marvin W. Factor and Morton B. Weinstein, co-partners, t/a Weinstein and Factor.
Harold Greenberg, with him Patrick W. Kittredge, Roslyn G. Pollack, and Cohen, Shapiro, Polisher, Shiekman and Cohen, for appellants.
Francis X. Nolan, with him Eli N. Donsky, and Donsky, Katz, Levin & Dashevsky, for appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy.
This appeal arises out of a dispute between two attorneys who jointly represented a party plaintiff in a trespass action. That action resulted in a sizeable settlement in favor of their client, one third of which was due the attorneys handling the case under a contingency fee arrangement. On April 6, 1973, the appellee, Irwin Rosenzweig, filed a complaint in equity against his former co-counsel, appellant Marvin Factor, alleging
that Factor was withholding appellee's share of the fee payable by the client to both attorneys, contrary to the oral agreement between them. The complaint requested, inter alia, a preliminary and permanent injunction requiring that the collected funds remaining in the appellant's possession*fn1 be paid into court and that an arbitrator be appointed to resolve the dispute between the two parties. On April 17, 1973, the chancellor granted a rule upon appellant, returnable May 8, 1973, to show cause why the preliminary injunction should not issue. No direct response was made to this rule, but in August, 1973, the defendants filed preliminary objections to the complaint, one in the nature of a demurrer and the other alleging an adequate remedy at law. No action has been taken on these objections. On September 12, 1973, a decree, dated as of August 20, 1973, was filed by the chancellor, directing that $27,777.78, plus 6% interest from November 1, 1972, be placed by the appellant in an escrow account from which those funds could not be withdrawn "unless upon Order of this Court". This appeal followed.*fn2 We must reverse.*fn3
The fundamental defect in the proceeding below was that a preliminary injunction issued without notice and without a hearing, although the record is devoid of any showing that immediate and irreparable injury would be sustained if such injunctive action were not taken. The only facts before the court were those alleged in the complaint. The pleading set forth in detail the background
of the dispute, and asserted that appellee was, by contract, entitled to funds in the possession of appellant. There was no claim that the funds were about to be dissipated or that appellee's other assets would be insufficient to satisfy the claim. The complaint had been filed five months before the preliminary injunction was ordered; it would be specious to argue -- and the appellee does not argue -- that a hearing on the prayer for preliminary relief could not have been held within this period. The decree was thus in violation of the requirements of Rule 1531 of the Pennsylvania Rules of Civil Procedure, and of our decisions, of which the rule is declaratory. Commonwealth ex rel. Costa v. Boley, 441 Pa. 495, 500, 272 A.2d 905 (1971); Pubusky v. D.M.F., 428 Pa. 461, 463, 239 A.2d 335 (1968); Apple Storage Co., Inc. v. Consumers E. & P. Ass'n., 441 Pa. 309, 316-317, 272 A.2d 496 (1971) (concurring opinion of this writer).
The decree was also defective and subject to being vacated for the further reason that it issued without the requisite bond being filed by appellee pursuant to Pa. R. C. P. 1531(b). Mamula v. United ...