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DONATELLI v. CARINO. (04/16/56)

April 16, 1956

DONATELLI, APPELLANT,
v.
CARINO.



Appeal, No. 42, March T., 1956, from order of Superior Court of Pennsylvania, No. 94, April T., 1955, affirming order of County Court of Allegheny County, No. 1793, of 1954, 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 Stern, C.j., Jones, Bell, Musmanno and Arnold, JJ.

Author: Stern

[ 384 Pa. Page 583]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

This appeal, which we allowed from the decision of the Superior Court (179 Pa. Superior Ct. 39, 116 A.2d 95), concerns the jurisdiction of the County Court of Allegheny County in an action brought by partners against a co-partner. Both the County Court itself and the Superior Court held that the former had no jurisdiction of the suit because the Act of May 5, 1911, P.L. 198, as amended, creating the County Court of Allegheny County, did not confer on it jurisdiction in equity: Kemnitzer v. Kemnitzer, 335 Pa. 105, 110, 6 A.2d 571, 573; DuPuy Estate, 373 Pa. 423, 426, 96 A.2d 318, 319. The question, therefore, is whether the present action, although in form an action in assumpsit, falls within that ban.

Plaintiffs and defendant, on July 24, 1951, entered into articles of copartnership for the purpose of buying, selling, renting and hiring equipment used in the construction of highways and buildings, and also for the hauling of materials of all kinds. Plaintiffs' complaint alleges that defendant breached the agreement in that he did not make his required contribution to the partnership business, that several times he withdrew from the bank partnership funds for his own personal use, that he cashed a check payable to the partnership and appropriated the proceeds, and that he never performed any services whatever for the partnership. Accordingly, plaintiffs, on January 15, 1953, notified defendant that they were "rescinding" the partnership agreement as to him and they subsequently brought this suit to recover from him the sum of $931.44, with interest, being the amount which they

[ 384 Pa. Page 584]

    asserted had been improperly converted by him to his own use. The court sustained defendant's preliminary objection to the complaint on the ground of lack of jurisdiction because of plaintiffs' cause of action sounding in equity.

It is plaintiffs' contention that their action is founded on a rescission of the partnership agreement and that there is no need for any accounting. It is clear, however, that the partnership was engaged in a continuing business for at least eighteen months, and that, during that period, it was in full-fledged operation and conducted a number of transactions. Obviously, therefore, a complete accounting is necessary before it can be ascertained whether defendant is liable to plaintiffs and, if so, in what amount.

The Act of October 13, 1840, P.L. [1841] 1, § 19, provided that in settling partnership accounts an acton of account render could be commenced either by bill in chancery or at common law.*fn1 The Practice Act of May 14, 1915, P.L. 483, § 11, provided that, in certain cases, plaintiff might ask for an account in an action of assumpsit. This section was suspended by Pa. R.C.P. 1452 and replaced by Pa. R.C.P. 1021, which provided that the relief demanded in an action of assumpsit might include an accounting. It is therefore clear that a partnership accounting may be sought, sometimes in an action at law, sometimes in equity. While Pa. R.C.P. 2129 abolished equity jurisdiction in actions by a partnership ...


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