DocketNumber： 124
Judges： Eagen, O'Brien, Roberts, Pomeroy, Nix, Manderino, Jones
Filed Date： 3/17/1976
Status： Precedential
Modified Date： 11/13/2024
(concurring).
I agree that the decree appointing the receiver must be vacated, but I cannot join the majority’s justification for its result.
Hogsett v. Thompson, 258 Pa. 85, 101 A. 941 (1917), is not controlling here. In that case, the petitioner seeking the appointment of a receiver was only a contract creditor who had not reduced his claim to judgment. The proper rule, recently stated in Tate v. Philadelphia Transportation Co., 410 Pa. 490, 500, 190 A.2d 316, 321 (1963), is:
“[A] receiver will be appointed only in aid of some recognized, presently existing legal right, and no appointment will be made in a case where a receivership is the sole remedy prayed for.”
Accord, Bowman v. Gum, Inc., 321 Pa. 516, 184 A. 258 (1936); McDougal v. Huntingdon & B.T. Mt. R.R., 294 Pa. 108, 143 A. 574 (1928). Appellees in this case meet both of these requirements. They are judgment creditors and, as such, have a “recognized, presently existing legal right,” and the appointment of a receiver was not the sole remedy sought. A creditor who has reduced his claim to judgment should not be required to also reduce that judgment to a lien before being able to petition for the appointment of a receiver. The majority’s result, which has no support in the case law, denies the hearing court an important procedure with which to protect just
However, in this case, appellants have already levied against the disputed property and their claim to the property is clearly superior to the claims asserted by appellees. The court, in hearings which failed to conform with the Pennsylvania Rules of Civil Procedure a,nd which ignored appellants’ superior claim, appointed a receiver and allowed the property to be taken out of state. Such action puts the appellants’ prospects of satisfying their lien in serious jeopardy if superior liens or other claims were to attach in the foreign jurisdiction.
Although the appointment of a receiver is a discretionary remedy, it should be “exercised sparingly, with caution and circumspection, and only in an extreme case, under circumstances as demand or require summary relief.” Tate v. Philadelphia Transportation Co., supra 410 Pa. at 500, 190 A.2d at 321; see Waddell & Shriber, 465 Pa. 20, 33, 348 A.2d 96, 102 (1975). As we stated in Waddell:
“We have in a number of cases discussed guideposts to aid a court in determining whether a receiver should be appointed. ‘[C]ourts will not appoint receivers where there is well-founded suspicion it would be followed by serious injustice or injury to the rights of all parties interested. The court, before any appointment is made, will act with the utmost caution. Receivers will not be appointed unless the chancellor is convinced the right is free from doubt, the loss irreparable, with no adequate legal remedy, and the relief sought is necessary. . . . Illustrating these general principles, a receivership will not be granted where it will work irreparable injury to the rights and interests of others and greater injury will probably result from the appointment than if none were made, or where the appointment will do no good.’ ”
Here, the court abused its discretion by appointing a receiver without adequately protecting the rights of appellants. Perhaps, because of the unique nature of the property, a New York sale may offer an equitable solution. The court should not be barred from taking such action if, after a proper hearing with proper protections for all creditors, it is found to be warranted. The majority, using an artificial procedural rule, denies the court even the possibility of such a solution. I believe this is an unjustified limitation on the court’s equitable powers and may be detrimental to the best interests of creditors.