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MARION POWER SHOVEL COMPANY v. FORT PITT STEEL CASTING COMPANY (02/27/81)

filed: February 27, 1981.

MARION POWER SHOVEL COMPANY, DIVISION OF DRESSER INDUSTRIES, INC.
v.
FORT PITT STEEL CASTING COMPANY, DIVISION OF CONVAL-PENN, INC. APPEAL OF THE UNITED STEEL WORKERS OF AMERICA, AFL-CIO, AN UNINCORPORATED ASSOCIATION



No. 1250 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, No. G.D. 78-18625.

COUNSEL

Frank J. Lucchino, Pittsburgh, for appellant.

Ralph T. DeStefano, Martin J. Saunders, Pittsburgh, for Marion Power, appellee.

Henry J. Wallace, Jr., Pittsburgh, for Fort Pitt, appellee.

Price, Hester and Montgomery, JJ. Hester, J., concurs in the result.

Author: Price

[ 285 Pa. Super. Page 47]

The instant appeal is from the order of the court of common pleas denying the petition of appellant, Local No. 1406, United Steelworkers of America, AFL-CIO, to intervene as a party in a replevin action between Marion Power Shovel Company (hereinafter referred to as "Marion") and Fort Pitt Steel Casting Company (hereinafter "Fort Pitt"). Appellant, the collective bargaining representative for Fort Pitt's employees, was engaged in an economic strike against Fort Pitt. Consequently, appellant argues that the petition to intervene should have been granted, since both the union and its members have a sufficient interest in the property involved in the replevin action to warrant intervention pursuant to Pennsylvania Rule of Civil Procedure 2327(4).*fn1 For

[ 285 Pa. Super. Page 48]

    the reasons that follow, we disagree and thus affirm the order of the trial court.*fn2

Fort Pitt is a manufacturer of steel castings used to produce gears, brake parts and tractor sheaths for heavy equipment. Marion manufactures heavy strip mining equipment requiring the use of finished castings such as those produced by Fort Pitt. On April 19, 1977, Marion placed an order with Fort Pitt for over 200 steel castings of various types. Because of the United Steelworkers strike against Fort Pitt, however, work on Marion's order ceased as of March 3, 1978. Thus, notwithstanding Marion's receipt of an invoice dated July 31, 1978, all of the completed castings had not been delivered as of that time.

Marion's ability to fill orders for its own equipment was contingent upon its timely receipt of components manufactured

[ 285 Pa. Super. Page 49]

    elsewhere.*fn3 Thus, it was not uncommon for Marion to take delivery of partially completed castings. N.T. 36. In view of the delay caused by the Steelworkers strike, therefore, Marion and Fort Pitt renegotiated the original purchase order to reflect Marion's willingness to accept delivery of the partially completed castings. N.T. 44-46. Subsequently, however, Marion was advised that Fort Pitt would not deliver even the partially completed castings because of the strike. N.T. 46. Consequently, on August 3, 1978, Marion filed a Complaint in Replevin to recover possession of the castings. Fort Pitt thereafter waived its right to notice, hearing and counterbond and disclaimed any interest in the castings. The trial court thus entered an order directing the issuance of a Writ of Seizure. Thereafter, on August 18, 1978, appellant filed a petition to intervene and, on August 22, having concluded that appellant had failed to substantiate its claimed possession of the required legally enforceable interest, the trial court refused its petition.

The determination whether to allow "intervention is a matter within the sound discretion of the court below and unless there is a manifest abuse of such discretion, its exercise will not be interfered with on review." Darlington v. Reilly, 363 Pa. 72, 76, 69 A.2d 84, 86 (1949). Accord, Taub v. Merriam, 251 Pa. Super. 572, 578, 380 A.2d 1245, 1249 (1977); Landis v. Glessner, 132 Pa. Super. 301, 200 A. 899 (1938). Instantly, appellant avers the commission of such an abuse in that the trial court failed to consider all of the evidence submitted. Brief for Appellant at 7. The evidence to which appellant refers consisted of conclusory statements that the union owned a legally enforceable interest in the castings subject to the replevin action and that the ...


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