Dean L. Foote, John M. Ashcraft, III, Allentown, for appellants.
Gus Milides, R. J. Shiroff, Easton, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a dissenting opinion. Jones, former C. J., did not participate in the decision of this case.
The dispute in this case arose as a result of the appointment of a temporary receiver with control over the business interests of the appellants. The Court of Common Pleas of Northampton County appointed the receiver on petition of the appellee as secured creditor of the appellants. The appellants argue that the court erred in appointing the receiver under the facts and circumstances of this case.
The facts of the case, briefly stated, indicate that the appellants were engaged in the communications business, leasing and selling various types of electronic equipment. In order to secure funding for the purchase of the electronic equipment and to cover operational costs, the appellants entered into an agreement with the appellee whereby the appellee loaned money to the appellants in exchange for a security interest in the appellants' inventory and assignment of the appellants' accounts receivable. In August of 1974, the appellee became concerned with appellants' ability to discharge their loan obligations. On September 30, 1974, at
the request of the appellee, a temporary receiver was appointed (pursuant to Rule 1533 of the Pennsylvania Rules of Civil Procedure) to control the assets of various enterprises owned by the appellants. After subsequent modifications of the appointment, the appellants appealed to this Court challenging the propriety of the receiver's appointment. While this appeal was pending, the receivership was terminated after the parties settled a replevin action on September 18, 1975. The replevin action was not instituted by the appellee until the court had denied a permanent receiver, finding that the appellee had an adequate remedy at law based on the security interests.
The appellee first argues that since the receivership has been terminated the issue of the propriety of the receiver's appointment is moot. We do not agree. Rule 1533 of the Pennsylvania Rules of Civil Procedure provides:
"(a) A temporary receiver may be appointed without notice if required by the exigencies of the case. Except as otherwise provided by an Act of Assembly, such appointment may not be made unless
(1) A plaintiff files a bond in an amount fixed and with security approved by the court, naming the Commonwealth as obligee, conditioned that if the appointment is vacated because improperly made the plaintiff shall pay to any person injured all damages sustained by reason of such appointment and all legally taxable costs and fees . . . ." (Emphasis added.)
Thus, if the appellants decide to present a claim for damages in a future action it will be necessary for them to establish that the appointment of a temporary receiver was "vacated because improperly made." This same requirement is found in Rule 1531 of the Pennsylvania Rules of Civil Procedure regarding the posting of a bond when a preliminary injunction is sought. In that rule it has been determined that liability on the bond may not rest on any cause unconnected with the propriety of the ...