Adam Hat Stores, Inc. v. Lefco

Per Curiam, Plaintiff appeals from tbe action of tbe court below making absolute a rule to show cause wby tbe entry of a discontinuance of tbis case should not be stricken from tbe record. Plaintiff’s bill seeks to enjoin tbe defendant’s using trade names similar to those in use by bim. A motion for a preliminary injunction was beard by tbe court; defendant being called as on cross-examination testified at considerable length and was required by subpoena to produce records and documentary evidence. At tbe conclusion of tbe bearing, plaintiff withdrew its motion for a preliminary injunction and tbe case was continued to proceed to final bearing, defendant giving notice in open court that be would oppose a discontinuance. Tbe following day, however, without leave of court and without notice to defendant, plaintiff caused a discontinuance to be entered as a matter of course by tbe protbonotary of tbe common pleas. On learning of tbis action, defendant obtained a rule from tbe court to strike off tbe discontinuance, which rule was subsequently made absolute in an opinion which states tbe reason for so doing. Appellant contends this case is governed by Rule 14, Supreme Court Equity Rules, which provides that “Any party may discontinue bis suit, as of course, so far as re *444 lates to bis claim . . ., at any time prior to the trial; and thereafter, before findings of fact and law have been made and filed of record, by leave of court on canse shown, upon payment of such costs as the court may direct.” However, plaintiff’s right to discontinue is not absolute but rests within the sound discretion of the court. “While a discontinuance is ordinarily entered without leave of court actually obtained, it is none the less presumed to be entered by such leave, and will be stricken off in all cases where it would be inequitable to permit it to remain”: Shapiro v. Phila. et al., 306 Pa. 216, 220-21; Cross’s Est., 309 Pa. 418, 421-2. An examination of the record in the present case shows no abuse of discretion. The order of the court below is affirmed, costs to await the final outcome of the proceedings.