Michael W. Balfe, Rose, Schmidt & Dixon, A. J. Polito, Edward C. Leckey, Pittsburgh, for appellant.
S. M. Rosenzweig, Pittsburgh, for appellee.
Jones, Chief Justice, and Eagen, O'Brien, Roberts, Pomeroy and Nix, JJ. Manderino, J., took no part in the consideration or decision of this case. Jones, C. J., and Eagen, J., concur in the result. Roberts and Pomeroy, JJ., filed a dissenting opinion.
Appellant, C. I. Mortgage Group [hereinafter CIM], instituted an action in mortgage foreclosure on April 24, 1974, when it became apparent that construction on a housing project had been interrupted because of financial difficulties. On May 6, 1974, in an ex parte proceeding, Leonard McGee, Jr., as president of Harrison Square, Inc. [hereinafter Harrison Square], the developer of the project in question and also as president of McGee Masonry Corporation, a principal creditor of Harrison Square, petitioned for the appointment of a receiver for Harrison Square. The Court of Common Pleas of Allegheny County granted the petition and ordered that a hearing be held on June 5, 1974, to determine whether the appointment of the receiver should be made permanent or whether Harrison Square should be dissolved and liquidated. After hearings in which appellant CIM contested the appointment of a receiver, a Decree was filed on July 5, 1974, continuing the receivership and directing the receiver to seek financing sufficient to complete the project.
Pursuant to this direction the receiver subsequently petitioned the court for permission to enter into a contract for securing the funds allegedly necessary to complete the project.*fn1 Notice was given to all creditors that
an additional hearing would be held on September 16, 1974, to consider this request. Appellant, A. J. Demor and Son, Inc. [hereinafter Demor] was represented at this later proceeding but raised no formal objection to the petition. At the conclusion of the hearing, the Chancellor issued a decree permitting the receiver to enter said contract. Both CIM and Demor filed separate appeals to this Court from that ruling.*fn2 These appeals were then consolidated for the purpose of oral argument and disposition.
Subsequently, the parties to the appeal lodged at No. 67, March Term, 1975*fn3 notified this Court of their desire to discontinue their appeal. Since all parties in that action have expressed their agreement to the prayer of the Petition for Discontinuance of that appeal, we hereby grant the petition and direct that the appeal be withdrawn at the request of the parties and with the consent of this Court.
The remaining matter for disposition is the appeal of A. J. Demor & Sons, Inc. at No. 77, March Term 1975. The Chancellor in his opinion pointed out the flagrant violations of our former Rule 56 (which was in effect at the time this appeal was instituted) committed by this appellant in attempting to perfect this appeal and suggested that the appropriate sanction should be to treat the contentions raised herein as being waived.*fn4 We agree for the reasons that follow.