Appeal from the Decree in the Court of Common Pleas of York County, Civil Division, No. 82-S-2389.
Alan H. Bernstein and Max Goldman, Philadelphia, for appellant (at 247).
John C. Uhler, York, for Smotkin, appellant (at 251).
Joanne C. Betlem, York, for the Hub Store, appellant (at 251).
Wieand, Olszewski and Tamilia, JJ.
[ 363 Pa. Super. Page 598]
This case involves an attempt by Harold R. Smotkin, individually, doing business as the Hub Store and the Hub Store, Inc., to enjoin Manhattan-Ward, Inc. from using the name "Hub" for their clothing stores in the York County area.
[ 363 Pa. Super. Page 599]
The procedural aspects of this case form the basis for our determination that a remand is necessary to allow the lower court to rule on the exceptions filed by both parties. We, therefore, will review the various stages of this litigation as it has transpired.
A complaint was filed in June of 1982 together with a motion for a preliminary injunction. Manhattan-Ward sought to remove the action to federal court but it was ultimately remanded to the state court with a hearing on the preliminary injunction held in June of 1983. On March 6, 1984, the court issued what it titled a Decree Nisi ordering Manhattan-Ward to discontinue using the name "The Hub" and enjoining future use of the name in the York county area. The Decree also stated that unless exceptions are filed as required by Pa.R.C.P. 1518, the decree shall be entered as a Final Decree. Exceptions were filed but without ruling upon them, the court entered a second Order on March 20, 1984, calling for the issuance of a preliminary injunction upon the filing of a $50,000 bond and restricting advertising activities of Manhattan-Ward. Again, the court added that if exceptions were not filed, the Decree would become final. On March 21, 1984, a third Order was issued, revoking the prior Decree Nisi of March 6, 1984 and the Order of March 20, 1984 in recognition of procedural defects.
The March 21, 1984 Order decreed that pending a final hearing, a preliminary injunction be issued upon the filing of a bond. No mention was made of exceptions in this Order and Manhattan-Ward subsequently appealed. (No. 00126 Harrisburg, 1984).*fn1
On March 30, 1984, a petition for rule and adjudication of contempt was filed and the court subsequently entered an Order requiring Manhattan-Ward to stop advertising. Hearings were held in 1984 and on March 24, 1986, the court issued an Adjudication and Final Decree which ordered Manhattan-Ward to ...