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DONATELLI ET AL. v. CARINO. (07/21/55)

July 21, 1955

DONATELLI ET AL., APPELLANTS,
v.
CARINO.



Appeal, No. 94, April T., 1955, from order of County Court of Allegheny County, 1954, No. 1793, in case of James V. Donatelli and Felix Donatelli v. Louis Carino. Order affirmed.

COUNSEL

William F. Donatelli, for appellants.

Tice F. Ryan, Jr., with him Joseph H. Bialas and Bialas & Ryan, for appellee.

Before Rhodes, P.j., Ross, Gunther, Wright, and Woodside, JJ. (hirt and Ervin, JJ., absent).

Author: Rhodes

[ 179 Pa. Super. Page 40]

OPINION BY RHODES, P.J.

This is an appeal by plaintiffs from the order of the County Court of Allegheny County dismissing their complaint in assumpsit because of want of jurisdiction.

Appellants brought an action in assumpsit in the County Court of Allegheny County against defendant. Defendant filed preliminary objections. The court allowed appellants to file an amended complaint, upon the filing of which defendant amended the preliminary objections previously filed setting forth that appellants' cause of action, if any, was in equity, and that the County Court of Allegheny County had no jurisdiction of actions in equity.

The court below sustained the preliminary objections as amended.

Appellants' amended complaint set forth, inter alia, that appellants and defendant entered into a written

[ 179 Pa. Super. Page 41]

    partnership agreement on July 24, 1951, for the purpose of buying, selling, and hiring of construction equipment, and also for the purpose of hauling all kinds of materials; that defendant did not make his equal contribution to the capital of the partnership as provided by the partnership agreement; that appellants purchased partnership property with their own funds; that a partnership bank account was opened by defendant; that partnership funds were deposited therein; that the partnership business was conducted and payments made to the partnership; that certain payments were deposited in the partnership account and other payments were retained by defendant; that defendant breached the provisions of the partnership agreement in the manner in which he opened the bank account and withdrew funds therefrom; that appellants elected to rescind the partnership agreement and seek to recover $931.44 with interest from August 1, 1951, from defendant.

Appellants have averred in their pleadings the formation of a partnership, which was engaged in a continuing business for at least eighteen months. There had been no settlement of its affairs. Nevertheless, appellants do not ask for an accounting but seek to recover a specific sum from defendant because of alleged breach of the partnership agreement in relation to receipts and disbursements of partnership funds and in the conduct of partnership transactions. It would seem that, until there has been an accounting or settlement of the partnership affairs, it remains undetermined whether the transactions by defendant were for the benefit of the partnership or a misappropriation of partnership funds. Appellants ...


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