Appeal, No. 364, Oct. T., 1962, from decree of County Court of Philadelphia, Feb. T., 1959, No. 2257, in case of City of Philadelphia v. Louis Laboratories, Inc. et al. Decree reversed.
David Kanner, for appellant.
Matthew W. Bullock, Jr., Assistant City Solicitor, with him Ellis A. Horwitz, Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for City of Philadelphia, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 201 Pa. Super. Page 17]
This case is in its essentials similar to and governed by our decision in Philadelphia v. Pioneer Custom Upholstery
[ 201 Pa. Super. Page 18]
While Pa. R.C.P. No. 1509(b) was apparently overlooked in Lindenfelser v. Lindenfelser, 383 Pa. 424, 119 A.2d 87 (1956), cited by the plaintiff, the true rule was later laid down by the present Chief Justice in Silver v. Korr, 392 Pa. 26, 139 A.2d 552 (1958).
2. The city also contends that the defendant offered no proof of laches. Where laches is clearly apparent on the face of the complaint, it may be successfully interposed as a defence without further evidence. "In the absence of fraud or concealment, it is a general rule that laches follows the statute of limitations and will bar all transactions that occurred beyond the six year limitation of the statue." Silver v. Korr, supra.
As we said in Philadelphia v. Pioneer Custom Upholstery Co., Inc., supra, at p. 530: "While the defence of laches ordinarily depends upon all the circumstances, when, as here, the liability of the defendant is one which might have been asserted in an action of trespass or assumpsit and is cognizable in equity only because facts are alleged from which it might be inferred that the defendant is a trustee ex maleficio, the plaintiff will normally be barred after the expiration of six years by analogy to the statute of limitations. Ashhurst's Appeal, 60 Pa. 290 (1868); Barnes & Tucker Co. v. Bird Coal Co., 334 Pa. 324, 330, 5 A.2d 146, 149 (1939). See also Ebbert v. Plymouth Oil co., 348 Pa. 129, 34 A.2d 493 (1943)."
3. In the next place the city argues that the allegation of fraudulent conversion in the complaint of the Pioneer Custom Upholstery Co., Inc. case was a bare legal conclusion whereas here evidence was taken which showed fraud. The city relies upon evidence that Louis Love owned a great majority of the shares of the corporation and invested most of the capital with ...