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MARVIN J. LEVIN v. MARVIN I. BARISH (05/20/83)

filed: May 20, 1983.

MARVIN J. LEVIN
v.
MARVIN I. BARISH, AVRAM G. ADLER, ARNOLD LEVIN, AND HOWARD J. CRESKOFF, INDIVIDUALLY AND AS PARTNERS T/A ADLER, BARISH, LEVIN AND CRESKOFF, APPELLANTS. ROBERT C. DANIELS V. MARVIN I. BARISH, AVRAM G. ADLER, ARNOLD LEVIN, MARVIN J. LEVIN AND HOWARD J. CRESKOFF. APPEAL OF ROBERT C. DANIELS, MARVIN I. BARISH, AVRAM G. ADLER, ARNOLD LEVIN AND HOWARD J. CRESKOFF



No. 2849 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 1688 November Term, 1981, No. 2850 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 3394 July Term, 1980.

COUNSEL

Patrick W. Kittredge, Philadelphia, for appellants.

Tom P. Monteverde and C. Burt, III, Philadelphia, for appellees.

Hester, Johnson and Popovich, JJ.

Author: Popovich

[ 314 Pa. Super. Page 349]

Litigation ensuing from the dissolution of a law firm partnership has given rise to an order, entered September 22, 1982, requiring appellants to escrow a percentage of the receipts collected by the partnership on cases in which appellee, a former partner, claims an interest. The order also requires appellants to "certify" to appellee as to any and all funds received from said cases within thirty days from issuance of the order.

Appellants contend on this appeal that the aforesaid order is in the nature of a preliminary injunction and, having been entered without a hearing or bond as required by Pa.R.C.P. 1531(a), (b), should be vacated. Because the bond requirement of Rule 1531(b) has not been satisfied, we must vacate that portion of the lower court order granting preliminary injunctive relief. However, we affirm the September 22 order insofar as it grants equitable relief in the nature of an accounting.

Before addressing the legal issues raised in this appeal, it is necessary to review the facts and circumstances giving rise to the order in controversy. On June 20, 1980, Attorney Robert C. Daniels filed a complaint in equity in the Philadelphia Court of Common Pleas claiming, inter alia, that he was wrongfully excluded from his proportionate share of the assets of his former lawfirm, Adler, Barish,

[ 314 Pa. Super. Page 350]

Daniels, Levin and Creskoff (Firm No. 1). Mr. Daniels requested the appointment of a single judge to preside over the matter and render all the decisions in the action. By order of the President Judge, dated June 20, 1980, the action was assigned to the Honorable Edwin S. Malmed.

On November 12, 1981, Attorney Marvin J. Levin, appellee, filed a complaint in equity claiming that he was wrongfully excluded from his proportionate share of the assets of Firm No. 1 and from his share of the resulting firm, Adler, Barish, Levin and Creskoff (Firm No. 2), which he had left some time after Mr. Daniels had departed from Firm No. 1. The complaint prayed for injunctive relief and the appointment of a receiver. The Levin action was consolidated with the Daniels action.

On February 22, 1982, Judge Malmed issued an order appointing a receiver to collect all funds accruing to or for the account of the lawfirm and its predecessor firms. On April 16, 1982, the parties to the Daniels action, with the exception of appellee, settled their dispute. Judge Malmed approved the settlement on May 25, 1982, in an order which embodied the April 16 agreement, and rescinded the earlier order appointing a receiver. The May 25 order stated: "Nothing in any of the described agreements or in this order shall in any way affect such claims or obligations as may be held or due from Marvin J. Levin and all proceedings are without prejudice to such rights as he may have."

On August 23, 1982, appellee's counsel wrote a letter to Judge Malmed requesting that, because no progress had been made toward settling the dispute between the former partners, a hearing be scheduled and thereafter an order entered escrowing funds on appellee's behalf. By notice to all counsel dated August 30, 1982, Judge Malmed scheduled an all day hearing for September 13, 1982 to take place in his ...


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