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MAX A. HANKIN AND JANET HANKIN v. MOE HENRY HANKIN (09/23/83)

filed: September 23, 1983.

MAX A. HANKIN AND JANET HANKIN
v.
MOE HENRY HANKIN, SABINA HANKIN, PERCH P. HANKIN, GERTRUDE HANKIN, BENJAMIN R. SHANKEN AND PAULINE SHANKEN, ESTATE OF SAMUEL HANKIN AND HARRIET HANKIN. APPEAL OF MOE HENRY HANKIN, SABINA HANKIN, PERCH P. HANKIN, GERTRUDE HANKIN, BENJAMIN R. SHANKEN AND PAULINE SHANKEN



No. 1290 Philadelphia, 1983, Appeal from the Orders of the Court of Common Pleas, Civil Action, Equity, of Montgomery County, at No. 77-14009.

COUNSEL

Philip D. Weiss, Norristown, for appellants.

Franklin Poul, Philadelphia, for Max Hankin, etc., appellees.

Theodore R. Mann, Philadelphia, for Moe Hankin, et al., appellees.

Rowley, McEwen and Watkins, JJ.

Author: Rowley

[ 319 Pa. Super. Page 149]

This action involves the liquidation of a family partnership, which was dissolved in 1977. This is the fourth time that the controversy has been before our court. See Hankin v. Hankin, 279 Pa. Super. 179, 420 A.2d 1090 (1980); Hankin v. Hankin, 302 Pa. Super. 295, 448 A.2d 1049 (1981); Hankin v. Hankin, 298 Pa. Super. 559, 442 A.2d 362 (1982). The facts of the case are set out in detail in Hankin v. Hankin, 279 Pa. Super. 179, 420 A.2d 1090 (1980) and will not be repeated here.

The present appeal is from an order denying appellant's petition for an extension of time to complete the liquidation and appointing a receiver to liquidate the remaining partnership assets. We note that on two previous occasions, the trial court refused to appoint a receiver. Both of those decisions were appealed to this court. We affirmed. Hankin v. Hankin, 279 Pa. Super. 179, 420 A.2d 1090 (1980); Hankin v. Hankin, 298 Pa. Super. 559, 442 A.2d 362 (1982).

The decision whether to appoint a receiver is vested in the discretion of the trial court. Northhampton National Bank of Easton v. Piscanio, 475 Pa. 57, 379 A.2d 870 (1977). However, a receiver should only be appointed in an extreme case and under extraordinary circumstances. Waddell v. Shriber, 465 Pa. 20, 348 A.2d 96 (1975). Because of the drastic effect a receiver will have on the business entity involved, the court will only impose the remedy where it is necessary to prevent the waste or dissipation of assets; for example, where there is fraud or mismanagement. Hankin v. Hankin, 279 Pa. Super. at 201, 420 A.2d at 1102.

In this case, there has been no finding of waste, dissipation of assets, fraud or mismanagement. Appellee's main complaint seems to be that the liquidation is taking too

[ 319 Pa. Super. Page 150]

    long. At the time of dissolution, the partnership possessed assets, primarily real estate, valued at 77 million dollars. According to the findings of fact of the trial court, as of January 13, 1983, approximately $27,015,000.00 worth of property remained unsold. The court specifically found that pursuant to the Superior Court's order in Hankin v. Hankin, 302 Pa. Super. 295, 448 A.2d 1049 (1981), appellants have continued their efforts to liquidate the balance of properties owned by the partnership. In fact, the record indicates that since the date of the order, $20,327,000.00 worth of property has been sold. The mere fact that appellants have failed to wind up the partnership affairs and liquidate all assets at this time is not sufficient to establish that a receiver is necessary. Waddell v. Shriber, 465 Pa. 20, 348 A.2d 96 (1975). Since there is no evidence indicating that assets are being wasted or dissipated, the court committed an abuse of discretion in appointing a receiver. Therefore, the order denying appellants an extension of time and appointing a receiver will be reversed.

We understand appellees' concern that appellants' desire to purchase certain properties themselves may conflict with their obligation to seek out buyers willing to pay the highest prices. However, court supervision of ...


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