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SCHULZ v. SCHULZ (03/12/51)

SUPERIOR COURT OF PENNSYLVANIA


March 12, 1951

SCHULZ
v.
SCHULZ

COUNSEL

Ben Paul Jubelirer, Pittsburgh, for appellant.

Herbert Jacobson, Albert A. Fiok, Joseph H. Reich, Pittsburgh, for appellee.

Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Ross

[ 168 Pa. Super. Page 457]

ROSS, Judge.

This is an appeal from an order issued on a petition presented under Equity Rules 35 and 53, 12 P.S. ยง 1221,*fn1 in connection with a bill in equity filed by the appellee asking for the dissolution of a partnership and an accounting.

To the appellee's bill, the defendants filed an answer denying that a partnership existed, averring that the plaintiff-appellee had rendered services as an employee and not as a partner, and that he had been paid in full for his services. In connection with their answer, the defendants filed new matter under which they sought affirmative relief (money damages in the amount of approximately $7,300) on the basis that

[ 168 Pa. Super. Page 458]

    submitted to the consideration of the tribunal which is ultimately to pass upon the case. Where a party appeals to the conscience of his opponent, to discover facts lying in his own knowledge, it must be some strong equity or stringent rule of policy, that should form a bar to the discovery.'

It was not necessary for the appellee before seeking discovery to establish the main fact in controversy, the existence of a partnership. Liegy v. Clearfield Textile Co., 149 Pa. Super. 433, 27 A.2d 545, supra. It appears to be the primary contention of the appellant that in view of the defendants' denial that a partnership existed, the appellee is not entitled to an accounting until the issue of partnership is determined in favor of appellee. Of course, that contention is sound but it is not involved in the appeal before us. The court below did not in any sense determine this issue and order an accounting. It solely, under the authority of Rules 35 and 53, ordered the defendants to allow appellee to examine certain records within their possession to enable him to prepare an answer to their claim for affirmative relief. There is no contention that the appellee could get this information in any other way than from an examination of these records; admittedly the plaintiff's claim and the defendants' claim for money damages arose from transactions between the parties and the books relating to these transactions were kept by and within the control of the defendants.

The appellee's motion to quash this appeal on the ground that it is interlocutory is ruled in his favor by Young v. Bradford County Tel. Co., 346 Pa. 90, 29 A.2d 533, in which the Supreme Court quashed a similar appeal.

The appeal, being from an interlocutory order, is quashed.

RHODES, P. J., absent.


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