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JOHN ROBERT WOODS AND ANTHONY J. PIVIROTTO v. GERALD PECKICH (06/03/77)

decided: June 3, 1977.

JOHN ROBERT WOODS AND ANTHONY J. PIVIROTTO, APPELLANTS,
v.
GERALD PECKICH, ARTHUR SILVERMAN, THE GENERAL TIRE AND RUBBER COMPANY, AN OHIO CORPORATION, AND A. M. BYERS COMPANY, AN OHIO CORPORATION, APPELLEES (TWO CASES)



COUNSEL

Stanley W. Greenfield, Greenfield & Minsky, Pittsburgh, for appellants.

H. Yale Gutnick, Roger Curran, Rose, Schmidt & Dixon, Robert E. Wayman, Pittsburgh, for appellees.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the decision of this case. Nix, J., concurred in the result. Pomeroy, J., filed a dissenting opinion.

Author: Manderino

[ 473 Pa. Page 229]

OPINION OF THE COURT

This case represents three appeals from decrees of the Court of Common Pleas of Beaver County. The first decree released 18.698 acres of industrial land from a previously filed lis pendens. The second decree denied a motion for a protective order filed by appellants in connection with a court ordered deposition. The third decree granted appellees' motion for a judgment of non pros with prejudice as a result of the appellants' failure to be deposed at a court ordered deposition.

The appellants, John Robert Woods and Anthony J. Pivirotto, instituted this action by filing a complaint in equity in which they alleged that they were in partnership with appellees, Gerald Peckich and Arthur Silverman, who had entered into an agreement to purchase certain industrial acreage (175 acres) in Beaver County from appellee A. M. Byers Company (Byers), a subsidiary of appellee, The General Tire and Rubber Company. The appellants also alleged that appellees Peckich and Silverman had assigned their rights to a third party who was to salvage materials located on the property, develop some of the property, and deliver title to approximately ninety acres to appellees Peckich and Silverman. The appellants also joined as defendants various other parties whom they alleged were to participate in either purchasing, leasing or financing portions of the industrial acreage. The appellants sought an injunction against all defendants requesting in essence that all contemplated transactions be stopped, that the sales agreement be rescinded, and that the court order a new agreement which would include the appellants.

The equity action was filed and indexed as a lis pendens against the industrial acreage. A motion to dismiss as to certain defendants was filed and was granted as to all defendants except the appellees, Peckich, Silverman,

[ 473 Pa. Page 230]

Byers, and Byers parent company, The General Tire and Rubber Company. A consent order was then entered into by the parties which released a portion of the property from the lis pendens. The order, in effect, struck the lis pendens permanently as to fifty acres that were not involved in the action, and also struck the lis pendens permanently as to approximately thirty-five acres which was to be leased to Levinson Steel Company. As to the remaining ninety acres, the lis pendens was suspended solely for the purpose of permitting the necessary conveyances, leases or agreements to ultimately vest an interest in Peckich and Silverman.

Subsequent to the consent order, the appellees filed a petition to approve a proposed modification of that order with respect to the suspension of the lis pendens. The appellees alleged that as a result of this action and various actions filed in Allegheny County they were unable to effect the conveyances required by the agreements and the prior consent order. See e. g. Woods v. Peckich, 463 Pa. 274, 344 A.2d 828 (1975). To reduce and mitigate any damage caused by those actions, the appellees proposed certain modifications of the consent order. The court entered a decree on July 26, 1976, approving the requested modification and, in effect, removed the lis pendens from 18.689 acres of the ninety acres. At the same time the appellees presented a motion for sanctions requesting that appellants be ordered to submit to depositions. The court directed that appellants Woods and Pivirotto appear for depositions at 10:00 a. m. and 11:00 a. m., respectively, on August 1, and further directed that their failure to appear would result in a dismissal of the action. At 9:29 a. m. on the morning of the scheduled depositions, the appellants, pro se, filed a motion for a protective order alleging (1) inability to obtain counsel, (2) undisposed of preliminary objections to appellees' counterclaims, and (3) that the depositions were sought in bad faith. The appellants appeared at the

[ 473 Pa. Page 231]

    scheduled deposition but refused to be deposed pending a ruling on their ...


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