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HAMPSEY v. DUERR. (12/01/60)

December 1, 1960

HAMPSEY, APPELLANT,
v.
DUERR.



Appeals, Nos. 252 and 253, March T., 1960, from decrees of Court of Common Pleas of Somerset County, Nos. 5 and 6, Equity Docket, 1956, in cases of Highland Tank and Manufacturing Company v. Frank A. Duerr, also known as F. A. Duerr, and Bernard J. Hampsey, Receiver of Troop Water Heater Company v. Same. Decrees reversed.

COUNSEL

William L. Jacob and Frank A. Orban, Jr., for appellants.

Archibald M. Matthews, for appellee.

Before Jones, C.j., Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Musmanno

[ 401 Pa. Page 579]

OPINION BY MR. JUSTICE MUSMANNO

The two plaintiffs in this appeal, Bernard J. Hampsey, receiver of Troop Water Heater Company, and Highland Tank and Manufacturing Company, brought separate actions in assumpsit against Frank A. Duerr. The defendants filed preliminary objections which were not sustained. However, the plaintiffs voluntarily terminated their law actions and instituted suits in equity. The defendant again filed preliminary objections and the court held that since the complaints disclosed an adequate remedy at law, the actions in equity would be dismissed. Both plaintiffs appealed.

The plaintiff Highland Tank alleged that the defendant, as its president, treasurer and manager, abused his authority and made improper use of corporate funds, breaching his fiduciary duties to stockholders.

The Troop Water Heater Company's complaint alleged, that as its treasurer and general manager, the defendant used corporate funds for his own personal benefit, improperly negotiated a sale of stock held by him and the president, and in general breached his fiduciary trust to the stockholders. Both plaintiffs claimed specific amounts as a result of the defendant's alleged misconduct. No account or discovery was thus necessary to determine what the plaintiffs were entitled to under the averments made.

A reading of the two complaints establishes that the lower court was correct in stating: "When the complaints are examined and considered they present in essence simple claims for reimbursement; they do not seek an accounting; they do not need to be fortified by any discovery as frequently required in an equity action; while it may be more convenient and less difficult as a procedural matter to try the issues in equity there is in our judgment no legal reason requiring it

[ 401 Pa. Page 580]

    and therefore no basis for the plaintiffs to demand that they be heard in equity; moreover, their claims are basically and essentially assumpsit claims."

Since the complaints particularly set forth the amounts claimed by the plaintiffs as a result of the alleged misconduct of the defendant in the operation of the two companies' affairs, the proper remedy for the plaintiffs to have pursued was assumpsit. The question, however, remains: Should the court below have dismissed the actions as it did, or should it have certified the equity actions to the law side of the court to be acted on there as actions in assumpsit? Rule 1509 of the Rules of Civil Procedure governing actions in equity, provides: "(c) The objection of the existence of a full, complete and adequate ...


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