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EAST HILLS TV & SPORTING v. GARRY DIBERT T/D/B/A MAXUM CONSUMER SERVICES AND SUMMIT BANK (TWO CASES). APPEAL GARRY DIBERT T/D/B/A MAXUM CONSUMER SERVICES (TWO CASES) (09/24/87)

filed: September 24, 1987.

EAST HILLS TV & SPORTING
v.
GARRY DIBERT T/D/B/A MAXUM CONSUMER SERVICES AND SUMMIT BANK (TWO CASES). APPEAL OF GARRY DIBERT T/D/B/A MAXUM CONSUMER SERVICES (TWO CASES)



Appeal from the Order entered May 29, 1986 in the Court of Common Pleas, Civil Division, of Cambria County, No. 1986 - 1081. Appeal from the Order entered June 10, 1986 in the Court of Common Pleas, Civil Division, of Cambria County, No. 1986 - 1081.

COUNSEL

David J. Weaver, Johnstown, for appellant.

Richard J. Russell, Johnstown, for East Hills TV, appellee.

Rowley, Del Sole and Tamilia, JJ.

Author: Rowley

[ 366 Pa. Super. Page 456]

These are consolidated appeals from orders of the Court of Common Pleas, Cambria County, directing that Summit Bank issue appellee, East Hills TV & Sporting, a check from the account of appellant in the amount of $38,940. We affirm.

Appellee, East Hills TV and Sporting, entered into an oral agreement with appellant, Garry Dibert, t/d/b/a Maxum Consumer Services, for the purchase of a number of video cassette recorders. According to appellant, the recorders were to be obtained by him at a bankruptcy sale in Connecticut.

[ 366 Pa. Super. Page 457]

Appellee paid appellant the agreed price for the recorders. Shortly thereafter, upon the basis of information received to the effect that appellant might be unable or unwilling to perform the agreement, appellee instituted a complaint in equity to rescind the contract, alleging that appellant had misrepresented his ability to obtain the recorders in the agreed manner. Simultaneously, appellee filed a motion for special relief in the form of a preliminary injunction requesting that the court enjoin appellant from spending or utilizing any funds paid to him by appellee. The funds were on deposit in appellant's business account at Summit Bank.

Pursuant to appellee's motion, the trial court on May 8, 1986, entered a preliminary injunction enjoining appellant from spending or utilizing any of the funds paid him by appellee. Appellee was directed to file a bond in the amount of $20,000. The court further ordered that Summit Bank be "enjoined from honoring any request for withdrawal of [the funds at issue]."

A hearing to consider continuing the preliminary injunction was held on May 13, 1986. Edward C. Reed, owner of appellee East Hills TV & Sporting, testified at this proceeding but defendant/appellant Garry Dibert failed to appear. At the conclusion of the hearing, an order was entered by the trial judge, the Honorable Eugene A. Creany, continuing the preliminary injunction until May 29, 1986, to allow appellant another opportunity to appear and be heard.

All parties appeared on May 29, 1986. By order of court on May 29, 1986, the court made "the injunction previously issued permanent," and enjoined the appellant "from interfering in any way" with appellee's money that was on deposit in appellant's account in Summit Bank. Additionally, Judge Creany ordered Summit Bank to turn over to appellee the sum of $38,940 from appellant's account.

A further hearing was held on June 9, 1986, pursuant to a petition for contempt filed by appellee against Summit Bank for refusing to pay the funds to appellee as directed by the order of ...


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