No. 1301 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Cambria County, 1981, No. 4370.
James R. DiFrancesco, Johnstown, for appellant.
David J. Kaltenbaugh, Johnstown, for appellee.
Rowley, Del Sole and Montgomery, JJ.
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The issue presented in this appeal is whether the appellant, Johnstown Housing Authority (Authority), garnishee
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in an execution proceeding initiated by the appellee, United States National Bank In Johnstown (Bank), "unreasonably delayed" in seeking to interplead a third party claimant (Shearer). Both Shearer and the Bank assert claims against a fund retained by the Authority pursuant to a contract between it and the defendant, Robel Construction, Inc. (Robel). The Authority filed its petition to interplead Shearer fifty-three days after it was served with the writ of execution and interrogatories. The trial court held that the Authority had unduly delayed in presenting the petition and denied the interpleader. We have determined that, on the basis of the record before us, appellant did not unreasonably delay in seeking interpleader and, therefore, reverse the order of the trial court.
The record discloses the following facts. On November 4, 1981, the Bank confessed judgment on a judgment note given to it by the defendant Robel. A writ of execution was issued naming the Authority as garnishee, and the writ, together with interrogatories, was served on the Authority on November 13, 1981. On November 30, 1981, the Authority filed an Answer and New Matter to the Bank's interrogatories. The Authority admitted that it had approximately $37,000.00 that was being claimed by Robel, the defendant, as well as by Shearer, the third party claimant.
The Authority had entered into a series of contracts with the defendant Robel, culminating in a final contract of March 6, 1978, for the repair and restoration of certain facilities owned by the Authority which were damaged during the Johnstown Flood of 1977. Shearer was a subcontractor for the defendant Robel who was the general contractor. Shearer performed some of the repair and restoration work. The fund held by the Authority constituted a portion of the contract price that had been retained by the Authority pursuant to provisions of the contract between it and Robel.
In its answer and new matter, the Authority set forth that the claim of the defendant Robel to the fund was disputed by it and that other claims had been made against
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the fund by some of the subcontractors who had performed work for the defendant Robel. It was averred in the Answer and New Matter that Robel refused to provide the Authority with a certificate of completion and an affidavit that all subcontractors had been paid, both of which were necessary for him to be entitled to final payment. In addition, it was averred that the claimant ...