*1 ORDER PER CURIAM.
Order affirmed. J., McDERMOTT, did not in the consideration participate or decision of this case.
Robert C. DANIELS v. BARISH, Adler, Levin, Marvin I. Avram G. Arnold Marvin
J. Levin and Howard J. Creskoff. Appeal DANIELS, Appellant. of Robert C. LEVIN, Appellant,
Marvin J. v. BARISH, Adler, Levin, Marvin I. Avram G. Arnold Creskoff, Individually partners Howard J. and as t/a Adler, Barish, Levin and Creskoff.
Robert C. DANIELS v. BARISH, Adler, Levin, Marvin I. Avram G. Arnold Marvin Levin and Howard J. Creskoff.
Appeal of Marvin J. LEVIN. Supreme Pennsylvania. Court of
Argued April Sept. 4, Decided *3 Kittredge, for Arnold Levin. Philadelphia, Patrick W. Kidd, for Marvin I. Barish. Philadelphia, Ronald F. Haviland, Adler. Philadelphia, D. for Avram G. Bancroft Gold, H. for Howard J. Creskoff. Philadelphia, Lewis Burt, III, Monteverde, Philadelphia, Thomas P. C. Oliver for Marvin J. Golden, for Robert C. Daniels. Philadelphia,
Charles M. FLAHERTY, McDERMOTT, NIX, C.J., and Before ZAPPALA, JJ. HUTCHINSON THE OF COURT OPINION HUTCHINSON, Justice. Superior from an order of appeals us are cross
Before
arise out
They
Superior that part Court construed of the order requiring the creation of these as analogous escrow accounts to an order for a mandatory injunction under Pa.R.C.P. 1531. That rule expressly requires filing the of by a bond non-governmental plaintiff seeking special a preliminary or 1531(b). injunction. Pa.R.C.P. Superior Court thus held that the lower court had erred in directing deposit in the “Marvin J. Levin Escrow Account” of of 10% the funds by received agent, Creskoff,4 escrow Howard J. without the posting of a bond by Superior Court applied same to reasoning the Common Pleas order requiring for- partner, Daniels, mer Robert C. to set aside of the funds 5% he receives on files or matters Adler, handled formerly by Barish, Daniels, Levin and Creskoff in a second “Marvin J. Levin Escrow Account”. Common Pleas had directed establishment of these escrow funds as a means securing of status quo among Marvin Levin and all former se, inter partners,5 rights until the the parties, of had been adjudicated.6
We affirm Superior now Court’s judgment upholding that of part the Common Pleas order which directed certification Levin, accounts Marvin but reverse that portion mandate vacating its the order to a percentage fees, funds, the various successor firms’ overhead and costs, return of pending a final among settlement all mem- agreements agreed 4. Under the termination all the former partners except Marvin J. Levin. partners among 5. The other reached settlements themselves embodied 25, Agreements April May in Termination 16 and and an 1982, 25, Agreement May approved by Escrow Court Com- Adler, 2, Litigation, Pleas. mon Barish et supra, al. Consolidated note at 517. Barish, Barish, 6. Levin v. Philadelphia, Daniels v. Nos. 2849 and 2850 1982, Term, 3394, Term, 1980, No. November No. June (Slip op. (Court Appendix Appellant, Levin) to Brief for Marvin J. Pleas, Philadelphia County, 1982) (Opinion of Common December Entry Court). Sur of Order of *5 firms, including or successor Marvin original of the bers I chronological- are appeals The facts these two underlying 1976, In lawyers partnership as follows: six formed ly Barish, Adler, Daniels, and This firm of Levin Creskoff.7 31, 1980 C. Daniels May was terminated on when Robert equity filed a in in June of 1980 complaint left it. Daniels receiver, and asking appointment accounting for the of a an In filed a for the July, petition of assets. he apportionment of special impoundment of a and appointment judge Judge Philadelphia order of the President By record. Pleas, Maimed was Judge Court of Common Edwin S. assigned impounding Daniels’s case. He issued orders (a) (b) inventory, record and for: an distribution providing assets, (c) certain of a custodial account establishment counsel for joint for all fees under the control of the various (d) and designation prepare and of a C.P.A. to from operations February an account of the firm’s submit 29, 31, through May
In March of notified his four Marvin Levin Barish, Adler, firm and partners the successor Levin withdrawal, in termination resulting Creskoff his firm as then constituted. That withdrawal termination was effective March 1981. On November 12th of that claiming Marvin Levin filed his year, complaint equity that he had from his wrongfully proportion- been excluded ate interest in the assets of the several firms. partnership receiver, In his he of a prayer sought appointment relief assets, accounting equitable an and other relief. At Daniels point Marvin Levin and Robert were both similar seeking equitable separate relief their actions. In filed a petition December of Robert C. Daniels why for a Rule to Cause a receiver should not be Show Freedman, attorneys These six had members of the firm of been appears Borowsky Lorry. partnership enti- The 1976 still to be previously to fees from handled in that firm. tled cases appointed against action the partners initially remain- *6 Adler, Daniels, ing Barish, Creskoff, in including Levin and 8 The Marvin J. Levin. were remaining partners then also engaged in third yet dispute among termination them- selves. After January several conferences in among the court and the parties, all three cases were consolidated and Judge 22, an February ap- Maimed issued order on 1982 pointing Shuster Morris M. receiver of the temporary prop- assets, erty, and affairs all the business several firms.9 That order that all specified parties “counsel for have also agreed that or security no bond is This required.” appoint- 25, 1982, ment on May was rescinded after the ap- proved negotiated among the settlement all parties, the with the of Marvin In exception accordance with settlement, Creskoff, Howard J. of the ex-partners, one named escrow for the in dispute among funds Adler, Barish, Avram G. Marvin I. Arnold Levin and How- 25, ard J. The May Creskoff. court’s order of approv- ing agreements the settlement specifically “Nothing noted: any Agreements of the described or Order shall any claims way obligations may affect such as be held or due from Marvin J. Levin and all are proceedings without prejudice rights to such as he have.” This escrow may arrangement not challenged by has been to these appeals although it serves as the foundation on which the two challenged subsequently escrow accounts were created.
After a further conference among ex-partners, 22, court issued another order on is September This the order precipitated appeals which now before us. It directs receipts that all future from files and matters Barish, Adler, which appellees A. and Creskoff Levin have stated, had, Excluding both Daniels Marvin Levin who each as dispute all own with of them. Barish, 1980, Term, Barish, 9. Daniels v. No. June Levin v. No. Term, Adler, Barish, Barish, November Levin and v. No. Creskoff Term, (Court Pleas, Philadelphia December of Common 22, 1982) (Order County, February appointing Morris M. Shuster as Receiver). arising interest out the several an antecedent law firms10 paid over Howard J. as promptly Creskoff escrowee order agreement. the May under 25th entered on The also September 22nd order directs Howard Creskoff and C. separate Robert Daniels to establish the two escrow accounts challenge, now under entitled “Marvin J. Levin Escrow Accounts”.
On the first of these accounts Creskoff Howard J. and C. Burt, attorneys, Oliver one of Marvin Levin’s are designat- as on joint signatories; other, ed Creskoff Daniels designated. are so The order directs Howard J. Creskoff of the funds he the May agree- 10% receives under ments and order. It directs Robert Daniels to C. escrow 5% funds which he percentages receives. These are *7 on the mandatory based net after certain payments to creditors. The setting up order these two escrow accounts J. specifically Marvin Levin’s benefit potential also requires a to him certification of all funds received the by partners receiver, former the by Shuster, and Morris M. between March 31 and 1982. No bond May was re- quired any agents. the escrow Pleas in Common its December Sur Order of Opinion Entry of Court supported its of a omission bond from two escrow agents following with the statement:
References in have been made the appellate pleadings to the effect that this error committed Court in not by Creskoff, requiring a bond from Howard selected by other parties agreements their fiduciary. as their No bond was ever either requested by parties from Creskoff, Howard from Morris Shuster who acted had as during conservator proceedings earlier and who had been selected themselves. to
Appendix Appellant, Brief of Levin. Marvin J. Here Marvin former partners Levin’s all assert the entry September 22, of the 1982 order was in error because it was Freedman, Barish, Adler, Daniels, Borowsky Lorry; and Levin and Creskoff; Adler, Barish, Adler, Creskoff, I, Barish, Levin and and Creskoff, and Levin II. in the injunction and, therefore, nature of an defective under PaJR.C.P. 1531 because it did not require a bond of Levin, the plaintiff, precedent Marvin as a condition to its implementation. Superior accepted position Court set aside portion order, of the Common Pleas but it affirmed the Common Pleas direction to certify account- so, In ing doing Superior fees Court necessari- former ly rejected partner, Robert C. Daniels’s argument, that Common Pleas lacked it, first made on the appeal personam jurisdiction him he because was not named over as a defendant nor by original process served Marvin complaint against firm, Levin’s the second successor con- of those sisting partners remaining after Daniels with- drew.11
Daniels now to us appeals raising the same issue of personal jurisdiction in his ap- brief. Marvin Levin cross peals arguing that no plaintiff’s required bond should be on the facts of this case.
II There is no merit to appellant argument Daniels’s that Common Pleas lacked to order him to jurisdiction serve as an set percentage aside a certain funds he is from the receiving settlements these cases. In personam jurisdiction over Daniels was established when he brought equity against action Marvin Levin and *8 partners. his other That action formally consolidated with Marvin Levin’s in complaint Judge dealt with Malmed’s order of February Appellant 1982.12 Daniels himself invoked the aid of the court. He cannot now be heard to that a court of no say equity personal has jurisdic tion over him respect with distribution of the funds Moreover, received as a result of that aid. appellant waived Although Superior jurisdiction personam 11. Court’s in over Robert C. record, Daniels was not in raised counsel for Daniels has included argument with his brief an affidavit that the issue was raised in oral before that court. Supra, Note at 519. the issue of jurisdiction the court’s over his person when he failed to raise it at the time these cases were consolidated. His argument confuses the issue of jurisdiction over the matter, subject may which be raised at time under any Pa.R.C.P. with the issue of personal jurisdiction. Ob- jections to jurisdiction person over the are if not waived raised promptly.13
Ill Marvin Levin’s cross-appeal raises the issue of whether Superior Court was correct in analogizing the appointment of an to an injunction under requires Pa.R.C.P. That rule a plain bond from the tiff as a condition precedent to an injunction. Pa.R.C.P. 1533 requires plaintiff a seeking a receiver to file a bond only those circumstances in which he seeks the appoint ment without notice to the defendant. An injunction is a court order prohibiting commanding virtually any type of action. Traditionally plaintiff seeking pro a receiver to tect a res he which has an interest has required not been to file a bond unless he asks the court to proceed, exigent reasons, parte ex without notice to the defendant. 1533(a)14provides:
Pa.R.C.P. (a) A temporary receiver may appointed be without notice if required by exigencies of the case. as Except provided otherwise an Act by such Assembly, appoint- ment not made may unless
(1) the plaintiff files a bond an amount fixed and security approved court, with naming the Com- obligee, monwealth as conditioned that if the appoint- ment is vacated because improperly plaintiff made the 1504(a):7, (1977), 13. relating appear- Goodrich-Amram.2d at 51 § 1017(b)(1) ances and Preliminary Objections Pa.R.C.P. and Pa.R.C.P. 1032, Waiver of Defenses. practice respect 14. Rule 1533 continues the with to bonds in receiver- ships Equity set forth in the Rules of Practice which this Court 30, 1924, promulgated May published George on Henry, Equity M. (1933). Pennsylvania Jurisdiction and Practice in This rule was incorporated and restated in 1951 in Pa.R.C.P. 1533. *9 524 . damages sustained any person injured all pay
shall legally and all taxable appointment of such reason by fees, or costs and legal the
(2) deposits prothonotary with plaintiff the the by in an amount fixed of the United States tender the same upon the by prothonotary held be for the bond. provided condition as ap- of the continuation or revocation hearing A on the hearing of the held Notice promptly. shall be pointment persons to all temporary receiver given by shall be stockholders, if any, interested, including creditors ascertained. are known or can be addresses whose from a security or other This section demands bond require of the case exigencies if the only plaintiff to the notice temporary of a receiver without appointment from a However, require security does not the rule parties. to all is made with notice appointment plaintiff when case. Amram present in the Goodrich parties, as § (1977). 1533(a):2 at Factor, cited v. continuing partners Rosenzweig
The
have
(1974),
theory
of their
support
A.2d 36
457 Pa.
of a
is in the nature
court’s escrow order
that the lower
In
Pa.R.C.P. 1531.
Ro-
governed by
mandatory injunction
preliminary injunction
of a
grant
we reversed
senzweig,
check
of a settlement
possession
directed counsel
which
disputed
the fee
representing
the portion
to retain in escrow
entered without notice
that order was
co-counsel because
by
that
failed to note
hearing. Appellees have
and without a
hold-
any
disclaimed
specifically
Pomeroy’s opinion
Justice
relief
the lower
injunctive
of the
which
propriety
on the
ing
Id,.,
Since person powers with the broad of a full receiver when all of court, or the present represented the are before we is a sine not now inclined hold that a bond plaintiff’s are to non for an order qua directing of appellant’s ex-part- two to set relatively percentage ners aside a small of the disput- provide yet ed to as partnerships’ contingent funds his rights claims. Marvin Levin’s any portion to escrowed funds to be by remain determined settlement or further adjudication. Meanwhile the escrowed funds will supervision stay custody and of two of his former partners. obligation Their only is to see that the funds in two not expended these accounts are court approv- without al.
The briefs of continuing partners and Daniels do clearly not distinguish between the issues whether Mar vin Levin filed plaintiff’s should have a bond or whether should required give Creskoff Daniels security 1533(d), under Pa.R.C.P. as required of receivers. Because this briefly requirements confusion we consider the 1533(d). 1533(d) Rule Present Pa.R.C.P. explicitly requires a provide receiver “must” a bond. (d) Except provided as Act of otherwise an Assembly, receiver, temporary permanent, give whether or must faithful security performance such for the as duty A shall direct. receiver shall not act until he has given security required. 1533(d).16 view,
Pa.R.C.P. In our “must” word makes rule respect this mandatory obligation with the receiver’s 1533(d)’s predecessor, Equity Rule Rule stated: receivers, appointing temporary permanent, orders All shall require give security performance them to such for the faithful their duties as to shall the court seem meet.
to provide security and the court’s discretion may now be only exercised as to the amount of security It imposed. is this mandatory language that apparently troubled Judge Maimed opinion when he wrote his on the September or- however, der.17 In case, the full-scale receivership in May ended of 1982. The parties now objecting to the absence of a bond thereupon substituted an by agreement.18
Judge Malmed’s order appointing a temporary receiver gave that powers assets, receiver broad over the “property, business and affairs” of succeeding partnerships, in- *11 cluding furniture, to “all duty inventory fixtures, equip- ment, estate, in interests real cash on hand deposit, or on action, choses in accounts receivable and client files.” It required also the ex-partners, agents, their representatives employees or to to deliver the receiver all any and funds previously and presently received their possession and any and all payments thereafter received relating any to of the partnerships’ files or matters. In contrast the Septem- order, directing ber Howard J. Creskoff and Robert C. Daniels to set aside a percentage the funds already their possession until such time as Marvin Levin’s claims against ex-partners have been established extin- guished, is of limited scope. 1533(d),
Under Pa.R.C.P. the only presently relevant is inquiry agents whether the escrow which Common Pleas designated setting the two up Marvin J. Levin Escrow Accounts subject should be to the bonding requirements applicable to circumstances, receivers. Under the existing without determining whether Common Pleas erred not requiring a custodians, receiver’s bond of these we hold the parties asserting defect waived the issue they when expressly agreed to forego a bond from Shuster and there-
Henry, supra at 300. Supra, Note at 518. Again we expressly they note that these same stated did not receiver, require prior appointed a bond of the court Morris Shuster. after own substituted their nominee Creskoff as escrow in the agreement basic which underlies the two us, Marvin Levin To continuing J. escrows. absence bond argument on the main contradicts the escrow that the parties’ are its on rights violated absence Levin’s much smaller derivative Both escrows. the Levin ac- escrow agents counts and their joint escrow will continue subject equitable to the of the jurisdiction court until such time as Marvin Levin’s claims are adjudicated or the approves negotiated a agreement. settlement The escrow agents to the court for expenditures will answer from any meantime, accounts. In the these will funds continue in their custody Marvin Levin no will have responsibilities access to them. Such limited are those mere custodian and a substantial diminution from the nor- mal authority responsibilities of a receiver.
For foregoing portion reasons we reverse that order of Superior Court which vacated Common Pleas’ appointment agents ancillary the escrow for the two Levin Marvin J. escrow accounts and affirm the orders of both courts requiring parties, including lower the other Daniels, certify accounts to Case Marvin the Philadelphia remanded to Court Common Pleas *12 proceedings opinion. further consistent with C.J., NIX, concurring files a opinion.
McDERMOTT,J., concurs the result. PAPADAKOS, JJ., participate LARSEN did not the consideration or decision this matter.
NIX, Justice, concurring. Chief
I agree with the
majority
appellant Daniels’ claim
personam
lacked pleas
that the
common
juris
diction
him
timely
over
was not
raised
is therefore
Co.,
waived. Tops Apparel
Inc. v. Roth
Manufacturing
man,
Crown Construc
583,
(1968);
Pa.
244
430
A.2d 436
Co.,Ltd.,
tion Co.
v.
American Ins.
429 Pa.
Newfoundland
Co.,
119,
Yentzer v.
Wine
(1968);
Pa.
I also
that the
Court’s
agree
Superior
holding that a bond
required
prerequisite
as a
issuance of the trial
22,
court’s
1982 order must
September
be reversed. Con-
trary
Superior
to the
unsupported
Court’s
conclusion that
the challenged order was a
the trial
preliminary injunction,
no more
court’s action amounted to
than a modification of
the original
receivership
necessitated
circumstances
25,
which came to
its
1982
light following
May
approval
agreements.
the settlement
Since the order was not issued
parte,
ex
1533(a).
no
under
required
bond was
Pa.R.C.P.
1531,
governs
The
of Pa.R.C.P.
requirements
bond
which
have no
in the instant case.
injunctions, clearly
applicability
it is
of a
an
appointment
While
true that
receiver has
Brothers Coal
Co. v.
Schipper
Mining
effect,
injunctive
Co., 277 Pa.
Economy Domestic Coal
356,
529 Piscanio, Northampton National Bank Easton v. 475 (1977); 870 57, Corp. Pa. 379 A.2d Credit Alliance v. Philadelphia 450 Pa. Corp., Minit-Man Car Wash (1973). arrangements A.2d 816 Each ordered trial for purpose, issued and is characterized as a There is no basis properly receivership. order, for the assertion that the September unlike prior matter, prelimi- orders entered constituted a nary bringing play into of rule injunction provisions
481 A.2d Paper COOPER, In the Matter of The Kevin Nomination E. Independent Representative for Candidate the Office of in the Assembly Legislative General from the 24th District Alle- gheny County.
Appeal of Kevin E. COOPER. Supreme Pennsylvania. Court of
Oct. Palladino, Madaline Judge. Pa.,
Clifford C. Cooper, Pittsburgh, appellant. for Jr., Pa., John Connelly, Harrisburg, Joseph for Preston. Elections, State, Bureau Dept, Alleghe- Harrisburg, Bureau, ny County Election Pittsburgh, appellee. NIX, C.J., LARSEN, FLAHERTY, Before HUTCH- zappala jj. INSON, McDermott, papadakos,