Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

10/22/97 JESSICA METTA DOWNS v. PHILIP J. SMYTHE

October 22, 1997

JESSICA METTA DOWNS, A MINOR BY HER GUARDIAN, CAROLYN R. DOWNS AND CAROLYN R. DOWNS, INDIVIDUALLY, APPELLEE
v.
PHILIP J. SMYTHE, SR., AND PHILIP J. SMYTHE, JR., AND CHRISTINE SMYTHE, HUSBAND AND WIFE; APPEAL OF: PHILIP J. SMYTHE, SR., APPELLANT



Appeal from the Order Entered November 22, 1996. In the Court of Common Pleas of BUCKS County. Civil Division No. 92-000835-14-5. Before BIESTER, J.

Before: Del Sole, J., Saylor, J., Cercone, P.j.e.

The opinion of the court was delivered by: Cercone

OPINION BY CERCONE, P.J.E.:

Filed October 22, 1997

This is an appeal from an order denying appellant's motion to vacate and nullify previous injunctions issued against appellant. *fn1 As this appeal is untimely, we are constrained to quash.

Appellees, Jessica Metta Downs and Carolyn R. Downs, filed a complaint in equity on January 27, 1992, against appellant, Philip J. Smythe, Sr. as well as his son and daughter-in-law. The essence of the complaint involved the Uniform Fraudulent Conveyance Act, 39 Pa. C.S.A.§ 351-363. Appellees reference this complaint to a separate complaint, previously filed on November 8, 1990, for a cause of action arising on April 30, 1990. *fn2 Appellees alleged in their equity complaint that appellant, Smythe, Sr., was arrested and convicted on criminal charges on or about October 17, 1990. Further, appellees aver that appellant gave his power of attorney to his son soon after he was incarcerated. Appellees submitted that their earlier complaint not only pled compensatory but punitive damages as well for all transfers of property from appellant to his family so as to make appellant insolvent.

The trial court issued a preliminary injunction on March 11, 1992, on appellees petition for same, enjoining and restraining appellants from "dissipating, transferring, alienating or converting any assets and all income owned by Philip J. Smythe, Sr. as of April 30, 1990." Trial court opinion dated January 22, 1997 at 2. On July 30, 1992, appellant filed a petition to dismiss the injunction and/or motion to require appellees to post bond. The trial court ordered that appellees post a five hundred dollar ($500.00) bond and issued a new preliminary injunction on December 14, 1992. Two days later a hearing was held following the posting of the bond and the trial court sustained the preliminary injunction in this matter with all the same restrictions of the March 11, 1992 order.

On October 22, 1996, appellees were successful in their suit against appellant for assault and battery and intentional infliction of emotional distress. Appellees were awarded $300,000.00 in compensatory and $300,000.00 in punitive damages. Thereafter, on November 15, 1996, appellant filed a "Motion for Enforcement of Pa. R.C.P. Rule 1531(b) Improvidently Issued Injunction and Resulting Damages For Cause Shown" asserting that the initial injunction was a nullity because the proper bond was not posted. Further, Appellant argued that the error created by said injunction could not be cured. The trial court denied appellant's motion on November 22, 1996, and appellant filed this appeal on December 2, 1996.

Appellant raises the following issues for our review:

1. Did the trial court below, commit an error and act without jurisdiction by re-issuing, with a bond, an improvidently issued injunction, therefore violating Pa. R.C.P. Rule 1531(b) and the rights of the appellants?

2. Did the issuing of a preliminary injunction, without the required bond cause the injunction to be an instant nullity and not enforceable according to Pa. R.C.P. Rule 1531(b)?

3. Did the court's re-issuance of the nullified injunction circumvent and/or interfere with appellant's rights to claim "all damages," as a result of the improvidently issued injunction under Pa. R.C.P. Rule 1531(b)?

4. Should the plaintiff counsel know the law and comport with the law, before he undertakes an "extraordinary remedy" that should be considered only with great caution, in seeking an injunction and should plaintiff counsel be held accountable for his violation of the rules?

5. Did the plaintiff's/appellee's violation of Pa.R.C.P. Rule 1531(b) and their attempt to expand and continue this violation by posting a bond nine months after the granting of the improvidently issued injunction, violate and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.