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PAULL v. PAULL. (01/03/56)

January 3, 1956

PAULL, APPELLANT,
v.
PAULL.



Appeal, No. 227, March T., 1954, from decree of Court of Common Pleas of Allegheny County, Oct. T., 1947, No. 2669, in case of Leo L. Paull v. Charles T. Paull et ux. and Liberty Ledger Publishing Company. Decree reversed.

COUNSEL

James A. Danahey, with him J. I. Simon, and Robert A. Jarvis, for appellant.

Ralph C. Davis, with him Charles H. Bode, for appellees.

Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.

Author: Jones

[ 384 Pa. Page 3]

OPINION BY MR. JUSTICE JONES

Leo L. Paull, the plaintiff, filed his complaint in equity against his brother, Charles T. Paull, the latter's wife, Anna C. Paull, and the Liberty Ledger Publishing Company, a Pennsylvania corporation. The complaint averred the creation of a partnership between the plaintiff and his brother in 1919 which continued thereafter in various successive business enterprises

[ 384 Pa. Page 4]

    down to 1946. The complaint prayed a dissolution of the partnership, an accounting by Charles T. Paull of the partnership assets and for ancillary relief.

After preliminary objections by the defendants had been overruled and a responsive answer filed, a hearing on the merits was had before the chancellor. The plaintiff offered supporting testimony and documentary evidence which was uncontroverted; the defendants appeared by counsel but offered no testimony. In due course the learned chancellor filed an adjudication with findings of fact and conclusions of law and entered a decree nisi awarding the plaintiff the relief sought. Later, the decree nisi was vacated on a representation by the defendants that, due to a misunderstanding, they had missed their opportunity to file a brief and requests for findings and conclusions. The order vacating the decree directed the plaintiff and the defendants to file requests which was done contemporaneously some time later. The same day, the chancellor filed a supplemental adjudication containing findings of fact and conclusions of law substantially the same as the adjudication originally filed and also entered the same decree nisi to which the defendants thereafter filed exceptions.

Following argument on the exceptions, the court en banc unanimously reversed the decree nisi and dismissed the plaintiff's bill on the ground that he had been guilty of laches. This was error. The learned chancellor had expressly recognized in his adjudication that the presence of laches does not depend upon the fact that a certain definite period of time has elapsed since the cause of action arose and cited Schireson v. Shafer, 354 Pa. 458, 463, 47 A.2d 665; Stimson v. Stimson, 346 Pa. 68, 72, 29 A.2d 679; and First National Bank of Pittston v. Lytle Coal Company, 332 Pa. 394,

[ 384 Pa. Page 5396]

, 3 A.2d 350. Indeed, the chancellor had correctly noted that "Before the chancellor can find that the plaintiff is guilty of laches he must consider whether any of the following tests, when applied, would show prejudice to the defendants" and forthwith categorized the pertinent criteria. The chancellor then concluded on the basis of his findings that "the record is devoid of any prejudice to the defendants, which is a necessary element for the doctrine of laches to be ...


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