Appeal, No. 29, Jan. T., 1956, from order of Court of Common Pleas of Bucks County, May T., 1955, No. 2, in case of Joseph W. Lindenfelser, Jr. v. Clara G. Lindenfelser. Order reversed.
David Freeman, with him Harry J. Liederbach, for appellant.
William M. Power, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE ARNOLD
The parties are husband and wife and are separated. The plaintiff-husband filed a complaint in equity
against the defendant, alleging that plaintiff and defendant owned real property as tenants by the entireties; that since their separation the wife occupied one property, excluding the plaintiff therefrom; that she was collecting the rentals from the remaining properties and applying them to her own use exclusively; and that the defendant also retained for her sole use, personal property owned by both parties, excluding the plaintiff therefrom.
The complaint prays for a preliminary injunction restraining the defendant from the collection of the rentals and asking for appointment of a receiver. The court below set a hearing on the request for injunctive relief, but on the day fixed refused to take testimony and summarily dismissed the petition for preliminary relief.
We are without the benefit of an opinion from the court below as to its reasons for dismissing the complaint; but, relying upon the briefs of counsel, it appears that the defendant took the position: (1) that the Act of 1893, P.L. 344, § 3, as amended by the Act of 1913, P.L. 14, § 1, 48 PS § 111, does not permit an action by one spouse against the other to enforce rights in tenancy by the entireties; and (2) that the plea of laches was available to the defendant, the appellee.
Under Rule 1501 of Pennsylvania Rules of Civil Procedure, the practice in equity is the same as in assumpsit, with some exceptions; and under Rule 1030 "laches" shall be pleaded under the heading "new matter." There was no answer filed to the plaintiff's complaint until after the court had dismissed the preliminary injunction. The answer thus filed simply states (on this point) that the facts set forth in the complaint reveal that the plaintiff is guilty of ...