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NED E. JOHNSTON v. JOHN A. JOHNSTON AND STEPHEN H. JOHNSTON (10/18/85)

filed: October 18, 1985.

NED E. JOHNSTON, DONALD JOHNSTON, LLOYD T. JOHNSTON, DENNIS D. JOHNSTON AND PATRICIA KOSTURA, APPELLEES,
v.
JOHN A. JOHNSTON AND STEPHEN H. JOHNSTON, APPELLANTS



Appeal from Order of the Court of Common Pleas, Civil Division, of Clearfield County, No. 79-28 EQU.

COUNSEL

Timothy E. Durant, Clearfield, for appellants.

Richard A. Bell, Clearfield, for appellees.

Wieand, Cirillo and Johnson, JJ.

Author: Wieand

[ 346 Pa. Super. Page 429]

Clair Johnston, by deed executed in 1968, conveyed his farm to his sons, John A. Johnston and Stephen H. Johnston. After Clair Johnston died in 1975, his remaining children*fn1 commenced an action in equity to impose a constructive trust on the farm for the benefit of all the children

[ 346 Pa. Super. Page 430]

    of Clair Johnston. The litigation proceeded to trial after two years of unsuccessful settlement negotiations. During trial, the parties finally reached agreement. The agreement was recited in open court, following which the trial court entered the following order:

NOW, September 23rd, 1981, the Court hereby accepts the agreement entered into, fully recognizing that it is presented to the Court in rough form but that the contents of the said agreement will be the basis upon which the trust agreement shall be formally prepared and signed by each of the parties and their individual spouses. Further, upon the completion of the said trust agreement, the same shall be filed in the Recorder's Office of Clearfield County, and the Prothonotary of the County is hereby directed that upon payment of all costs and the recordation of the said trust agreement, he shall mark the records in this case settled and discontinued.

After counsel for the children had reduced the agreement to writing, John and Stephen Johnston refused to sign it. The five children then filed a petition asking that their recalcitrant brothers be held in contempt for refusing to comply with the court's order of September 23, 1981. After hearing, the court entered an order on November 30, 1983 which was in the nature of a mandatory injunction directing

". . . that Defendants execute said trust agreement within 15 days of this date; failing which the defendants shall be held in contempt of Court, and such action taken by the Court as proper."

This appeal followed.

Appellants argue (1) that a final agreement was not reached during trial; (2) that if an agreement were reached, it was subsequently rescinded; (3) that the attorney who represented them at trial should not have been allowed to testify against them at the subsequent hearing; and (4) that it was error to order them to sign ...


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