James T. Carney, David K. McMullin, Pittsburgh, for appellant.
Leonard A. Mazer, Pittsburgh, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., took no part in the consideration or decision of this case. Pomeroy, J., did not participate in the decision of this case.
This is an appeal from a decision of the Court of Common Pleas in equity, where the Chancellor, affirmed by the court en banc, restrained appellant from enforcing its judgment by attaching Chatham Communications' bank account. The Chancellor found the existence of an agreement between the parties whereby General Press would not execute on its judgment if Chatham made periodic installment payments on account of the sum due. General Press appeals from the decision of the court below.
Initially we must consider appellee's motion to quash this action on the grounds that this appeal was taken from the decree nisi entered by the Chancellor and is therefore interlocutory. We cannot agree. A review of the record reveals that although there has not been strict adherence with our procedural rules, there has been substantial compliance and a motion to quash is not justified. On January 29, 1973, the Chancellor entered an order entitled "Preliminary Injunction or Decree Nisi." This novel caption was explained by the Chancellor in his opinion which accompanied it:
"The hearing on this request for a preliminary injunction embraced all of the evidence which would be available relating to the issue involved and further hearing would seem unnecessary, but, of course, the parties are not precluded from the right of a final hearing if desired, or they may in the alternative construe
this preliminary injunction, as a decree nisi and take exceptions thereto, and thus be in a position to argue legal points just as would be done after final hearing."
Thus, the appellant was given the option to treat the ruling of January 29th as an order granting a preliminary injunction and appeal directly to this Court from that order pursuant to the Act of February 14, 1866, P.L. 28, § 1 and the Appellate Court Jurisdiction Act, 1970, July 31, P.L. 673, No. 223, art. V, § 501(a), 17 P.S. § 211.501(a). However appellant apparently agreed with the Chancellor that an additional evidentiary hearing was unnecessary and elected to treat the Chancellor's action as a decree nisi. Appellant thereupon filed exceptions and also amended exceptions which were both subsequently dismissed by the court en banc on December 6, 1973.*fn1 It is that decree of December 6th from which this appeal was taken on January 3, 1974, pursuant to the Appellate Court Jurisdiction Act, supra, § 202(4). It is also apparent that the decree of December 6th is a final one implicitly affirming the decree nisi. Thus, we reject appellee's contention that this was an improper appeal from an interlocutory order. While appellant, in his answer to the Motion to Quash, suggests that the appeal is from the order of January 29, 1973, it is apparent that his intention was to appeal from that order after its affirmance by the decree of December 6, 1973.*fn2